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XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
CWCAPITAL ASSET MANAGEMENT LLC,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ6
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.............................................................................6
Section 1.2 Calculations Respecting Mortgage Loans.................................................80
Section 1.3 Calculations Respecting Accrued Interest...............................................81
Section 1.4 Interpretation.........................................................................81
Section 1.5 ARD Loans..............................................................................82
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage Loans......................82
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans...........................................................84
Section 2.2 Acceptance by Trustee..................................................................87
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material Document Defects and Material
Breaches of Representations and Warranties..........................................90
Section 2.4 Representations and Warranties.........................................................96
Section 2.5 Conveyance of Interests................................................................97
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans................................97
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.......................................................................98
Section 3.2 Registration...........................................................................99
Section 3.3 Transfer and Exchange of Certificates..................................................99
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates.....................................105
Section 3.5 Persons Deemed Owners.................................................................106
Section 3.6 Access to List of Certificateholders' Names and Addresses.............................106
Section 3.7 Book-Entry Certificates...............................................................106
Section 3.8 Notices to Clearing Agency............................................................110
Section 3.9 Definitive Certificates...............................................................110
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.......................................................111
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Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage Loans and Serviced
Pari Passu Mortgage Loans..........................................................111
Section 4.2 Servicing Advances....................................................................113
Section 4.3 Advances by the Trustee and the Fiscal Agent..........................................114
Section 4.4 Evidence of Nonrecoverability.........................................................115
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a
Mortgage Loan......................................................................116
Section 4.6 Reimbursement of Advances and Advance Interest........................................117
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections...........................................................................118
Section 5.2 Application of Funds in a Certificate Account and Interest Reserve Account............123
Section 5.3 Distribution Account, Reserve Account and Interest Reserve Account....................133
Section 5.4 Paying Agent Reports..................................................................135
Section 5.5 Paying Agent Tax Reports..............................................................138
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally...............................................................138
Section 6.2 REMIC I...............................................................................139
Section 6.3 REMIC II..............................................................................139
Section 6.4 Reserved..............................................................................141
Section 6.5 REMIC III and Excess Interest Grantor Trust...........................................141
Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls Due to
Nonrecoverability..................................................................150
Section 6.7 Net Aggregate Prepayment Interest Shortfalls..........................................153
Section 6.8 Adjustment of Servicing Fees..........................................................153
Section 6.9 Appraisal Reductions..................................................................153
Section 6.10 Compliance with Withholding Requirements..............................................154
Section 6.11 Prepayment Premiums...................................................................154
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee, the Fiscal Agent and the Paying Agent..........................156
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent and the Paying Agent..........157
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans........................................159
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Section 7.4 The Trustee, the Fiscal Agent and the Paying Agent May Own Certificates...............161
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal Agent and the Paying Agent.......161
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent or the Paying Agent..........162
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.......................................164
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or Paying Agent......................165
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian......................165
Section 7.10 Authenticating Agents.................................................................167
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the Paying Agent.....................168
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent, the Paying Agent and the
Servicer Report Administrator......................................................170
Section 7.13 Collection of Moneys..................................................................170
Section 7.14 Trustee To Act; Appointment of Successor..............................................171
Section 7.15 Notification to Holders...............................................................173
Section 7.16 Representations and Warranties of the Trustee, the Fiscal Agent and the
Paying Agent.......................................................................173
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the
Trustee, the Fiscal Agent and the Paying Agent.....................................176
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to Certificateholders............176
Section 7.19 Fiscal Agent Termination Event........................................................177
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties..................................................178
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by each
Master Servicer....................................................................180
Section 8.3 Master Servicer's General Power and Duties............................................181
Section 8.4 Primary Servicing and Sub-Servicing...................................................188
Section 8.5 Servicers May Own Certificates........................................................189
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other.....................189
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause..........................................................192
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files...............................196
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to be Held for
the Trustee for the Benefit of the Certificateholders..............................197
Section 8.10 Servicing Compensation................................................................197
Section 8.11 Master Servicer Reports; Account Statements...........................................199
Section 8.12 Annual Statement as to Compliance.....................................................202
Section 8.13 Annual Independent Public Accountants' Servicing Report...............................202
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the Mortgaged Properties..........203
Section 8.15 Other Available Information and Certain Rights of the Master Servicers................204
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Section 8.16 Rule 144A Information.................................................................206
Section 8.17 Inspections...........................................................................207
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents...........................207
Section 8.19 Specially Serviced Mortgage Loans.....................................................211
Section 8.20 Representations, Warranties and Covenants of each Master Servicer.....................212
Section 8.21 Merger or Consolidation...............................................................215
Section 8.22 Resignation of Master Servicer........................................................215
Section 8.23 Assignment or Delegation of Duties by Master Servicer.................................215
Section 8.24 Limitation on Liability of the Master Servicers and Others............................216
Section 8.25 Indemnification; Third-Party Claims...................................................218
Section 8.26 1934 Act Reporting....................................................................220
Section 8.27 Compliance with REMIC Provisions......................................................222
Section 8.28 Termination...........................................................................223
Section 8.29 Procedure Upon Termination............................................................225
Section 8.30 Operating Adviser Contact with Master Servicer and Special Servicer...................228
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer............................................................228
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer...........230
Section 9.3 Sub-Servicers.........................................................................230
Section 9.4 Special Servicer General Powers and Duties............................................231
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans; Due-On-Encumbrance Clauses.....234
Section 9.6 Release of Mortgage Files.............................................................239
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To Be Held
for the Trustee....................................................................240
Section 9.8 Representations, Warranties and Covenants of the Special Servicer.....................241
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies.........242
Section 9.10 Presentment of Claims and Collection of Proceeds......................................244
Section 9.11 Compensation to the Special Servicer..................................................244
Section 9.12 Realization Upon Defaulted Mortgage Loans.............................................246
Section 9.13 Foreclosure...........................................................................248
Section 9.14 Operation of REO Property.............................................................248
Section 9.15 Sale of REO Property..................................................................251
Section 9.16 Realization on Collateral Security....................................................253
Section 9.17 Reserved..............................................................................253
Section 9.18 Annual Officer's Certificate as to Compliance.........................................253
Section 9.19 Annual Independent Accountants' Servicing Report......................................253
Section 9.20 Merger or Consolidation...............................................................254
Section 9.21 Resignation of Special Servicer.......................................................254
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Section 9.22 Assignment or Delegation of Duties by Special Servicer................................255
Section 9.23 Limitation on Liability of the Special Servicer and Others............................255
Section 9.24 Indemnification; Third-Party Claims...................................................258
Section 9.25 Reserved..............................................................................259
Section 9.26 Special Servicer May Own Certificates.................................................259
Section 9.27 Tax Reporting.........................................................................259
Section 9.28 Application of Funds Received.........................................................260
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions.........................260
Section 9.30 Termination...........................................................................260
Section 9.31 Procedure Upon Termination............................................................264
Section 9.32 Certain Special Servicer Reports......................................................265
Section 9.33 Special Servicer to Cooperate with the Master Servicers and Paying Agent..............269
Section 9.34 Reserved..............................................................................270
Section 9.35 Reserved..............................................................................270
Section 9.36 Sale of Defaulted Mortgage Loans......................................................270
Section 9.37 Operating Adviser; Elections..........................................................273
Section 9.38 Limitation on Liability of Operating Adviser..........................................275
Section 9.39 Duties of Operating Adviser...........................................................275
Section 9.40 Rights of the Holder of a B Note......................................................277
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans.............278
Section 10.2 Procedure Upon Termination of Trust...................................................281
Section 10.3 Additional Trust Termination Requirements.............................................282
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.......................................................283
Section 11.2 Access to List of Holders.............................................................284
Section 11.3 Acts of Holders of Certificates.......................................................284
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration..................................................................285
Section 12.2 Prohibited Transactions and Activities................................................290
Section 12.3 Modifications of Mortgage Loans.......................................................291
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status......................291
Section 12.5 Excess Interest Grantor Trust.........................................................291
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement...........................................................292
Section 13.2 Entire Agreement......................................................................292
Section 13.3 Amendment.............................................................................292
Section 13.4 GOVERNING LAW.........................................................................295
Section 13.5 Notices...............................................................................295
Section 13.6 Severability of Provisions............................................................296
Section 13.7 Indulgences; No Waivers...............................................................296
Section 13.8 Headings Not to Affect Interpretation.................................................296
Section 13.9 Benefits of Agreement.................................................................296
Section 13.10 Special Notices to the Rating Agencies................................................296
Section 13.11 Counterparts..........................................................................299
Section 13.12 Intention of Parties..................................................................299
Section 13.13 Recordation of Agreement..............................................................300
Section 13.14 Rating Agency Monitoring Fees.........................................................300
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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-2A Certificate
EXHIBIT A-4 Form of Class A-2B Certificates
EXHIBIT A-5 Form of Class A-AB Certificate
EXHIBIT A-6 Form of Class A-3 Certificate
EXHIBIT A-7 Form of Class A-4A Certificate
EXHIBIT A-8 Form of Class A-4B Certificate
EXHIBIT A-9 Form of Class A-J Certificate
EXHIBIT A-10 Form of Class B Certificate
EXHIBIT A-11 Form of Class C Certificate
EXHIBIT A-12 Form of Class D Certificate
EXHIBIT A-13 Form of Class E Certificate
EXHIBIT A-14 Form of Class F Certificate
EXHIBIT A-15 Form of Class G Certificate
EXHIBIT A-16 Form of Class H Certificate
EXHIBIT A-17 Form of Class J Certificate
EXHIBIT A-18 Form of Class K Certificate
EXHIBIT A-19 Form of Class L Certificate
EXHIBIT A-20 Form of Class M Certificate
EXHIBIT A-21 Form of Class N Certificate
EXHIBIT A-22 Form of Class O Certificate
EXHIBIT A-23 Form of Class P Certificate
EXHIBIT A-24 Form of Class Q Certificate
EXHIBIT A-25 Form of Class S Certificate
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EXHIBIT A-26 Form of Class T Certificate
EXHIBIT A-27 Form of Class R-I Certificate
EXHIBIT A-28 Form of Class R-II Certificate
EXHIBIT A-29 Form of Class R-III Certificate
EXHIBIT A-30 Form of Class X-1 Certificate
EXHIBIT A-31 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Reserved
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate (Section
3.7(d)
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement (PMCF)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement (Xxxxx Fargo)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement (SunTrust)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Xxxxx Fargo Master Servicer
(Section 8.3(c))
EXHIBIT S-1A Form of Power of Attorney to PAR Master Servicer (Section
8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U-1 Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a) (Xxxxx Master Servicer)
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EXHIBIT U-2 Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a)) and Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to the Special Servicer
(Section 8.7(e)) (PAR Master Servicer)
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer (Section
8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA Form of primary servicing agreement (Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD Form of Notice with respect to each Non-Serviced mortgage Loan
SCHEDULE I MSMC Loan Schedule
SCHEDULE II PMCF Loan Schedule
SCHEDULE III Xxxxx Fargo Loan Schedule
SCHEDULE IV SunTrust Loan Schedule
SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts (Section
8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g)
is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XIII Class A-AB Planned Principal Balance
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THIS POOLING AND SERVICING AGREEMENT is dated as of August 1, 2005
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), PRUDENTIAL ASSET RESOURCES, INC.,
as a master servicer (the "PAR Master Servicer"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a master servicer (the "Xxxxx Fargo Master Servicer," and
together with the PAR Master Servicer, the "Master Servicers"), CWCAPITAL ASSET
MANAGEMENT LLC, as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee of the Trust (the "Trustee"), ABN AMRO BANK
N.V., only in its capacity as a fiscal agent pursuant to Article IV hereof (the
"Fiscal Agent") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, only in its capacity
as paying agent (the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), Prudential
Mortgage Capital Funding LLC, as seller ("PMCF"), Xxxxx Fargo Bank, National
Association, as seller ("Xxxxx Fargo") 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 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; and (iii) the REMIC III Certificates as
consideration for its transfer of the REMIC II Regular Interests to the Trust;
and (iv) the Class T Certificates as consideration for its transfer to the Trust
of the right to receive any Excess Interest (such right, and any amounts on
deposit from time to time in the Excess Interest Sub-account (as hereinafter
defined), the "Excess Interest Grantor 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 representing in the aggregate the entire beneficial
ownership of REMIC III and, (D) the Class T Certificates representing in the
aggregate the entire beneficial interest in the Excess Interest Grantor Trust.
All covenants and agreements made by the Depositor and the Trustee herein with
respect to the Mortgage Loans and the other property constituting the Trust are
for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II
Regular Interests, the REMIC Regular Certificates, the Residual Certificates and
the Class T Certificates. The parties hereto are entering into this Agreement,
and the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-J, Class X-2 Class B, Class C, Class D,
Class E and Class F Certificates will be offered for sale pursuant to the
prospectus (the "Prospectus") dated June 7, 2005 as supplemented by the
preliminary prospectus supplement dated July 20, 2005 (together with the
Prospectus, the "Preliminary Prospectus Supplement"), and as further
supplemented by the final prospectus supplement dated July 29, 2005 (together
with the
Prospectus, the "Final Prospectus Supplement"), and the Class X-1, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q,
Class S and Class T Certificates will be offered for sale pursuant to a Private
Placement Memorandum dated July 29, 2005.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I, each Class of REMIC
II Regular Interests and the Class R-II Certificates comprising the interests in
REMIC II, each Class of REMIC III Certificates comprising the interests in REMIC
III and the Class T Certificates representing pro rata undivided beneficial
interests in the Excess Interest Grantor Trust (each of REMIC I, REMIC II, REMIC
III and the Excess Interest Grantor Trust being created hereunder):
REMIC I
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess 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. Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a "latest possible maturity date" set to the Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. The Class R-I Certificate will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
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. The REMIC II Regular Interests have the pass-through
rates and Certificate Balances set forth in the definition thereof. The Class
R-II Certificates will be designated as the sole Class of residual interests in
REMIC II and will have no Certificate Balance and no Pass-Through Rate, but will
be entitled to receive the proceeds of any assets remaining in REMIC II after
all Classes of REMIC II Regular Interests have been paid in full.
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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 and the initial Certificate Balance for each Class of Principal
Balance Certificates (the "Corresponding Certificates").
<TABLE>
CORRESPONDING
CORRESPONDING INITIAL REMIC II COMPONENTS OF
INITIAL CLASS REMIC II REGULAR INTEREST CLASS X-1 OR
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE CLASS X-2
CERTIFICATES BALANCE INTERESTS (1) BALANCE CERTIFICATES (1)
------------- -------------- ------------- ---------------- ----------------
Class A-1 $ 121,200,000 A-1-1 $ 15,044,000 A-1-1
A-1-2 $104,658,000 X-0-0
X-0-0 $ 1,498,000 A-1-3
Class A-1A $ 318,834,000 A-1A-1 $ 1,360,000 A-1A-1
A-1A-2 $ 13,238,000 A-1A-2
A-1A-3 $ 13,796,000 A-1A-3
A-1A-4 $ 13,064,000 A-1A-4
A-1A-5 $113,236,000 A-1A-5
A-1A-6 $ 7,847,000 A-1A-6
A-1A-7 $ 7,388,000 A-1A-7
A-1A-8 $ 6,995,000 A-1A-8
A-1A-9 $141,910,000 A-1A-9
Class A-2A $ 294,875,000 A-2A-1 $106,039,000 A-2A-1
A-2A-2 $101,733,000 A-2A-2
A-2A-3 $ 87,103,00 A-2A-3
Class A-2B $ 42,125,000 A-2B $ 42,125,000 X-0X
Xxxxx X-XX $ 111,100,000 A-AB $111,100,000 A-AB
Class A-3 $ 103,000,000 A-3 $103,000,000 A-3
Class A-4A $1,060,595,000 A-4A-1 $ 28,804,000 A-4A-1
A-4A-2 $ 78,847,000 A-4A-2
A-4A-3 $107,627,000 A-4A-3
A-4A-4 $ 72,451,000 A-4A-4
A-4A-5 $772,866,000 A-4A-5
Class A-4B $ 151,514,000 A-4B $151,514,000 A-4B
Class A-J $ 175,571,000 A-J $175,571,000 A-J
Class B $ 24,098,000 B $ 24,098,000 B
Class C $ 34,425,000 C $ 34,425,000 C
Class D $ 27,541,000 D-1 $ 14,211,000 X-0
X-0 $ 13,330,000 D-2
Class E $ 24,098,000 E-1 $ 8,194,000 X-0
X-0 $ 15,904,000 E-2
Class F $ 27,541,000 F-1 $ 2,622,000 F-1
F-2 $ 24,919,000 F-2
Class G $ 27,540,000 G $ 27,540,000 G
Class H $ 34,426,000 H-1 $ 28,555,000 H-1
H-2 $ 5,871,000 H-2
</TABLE>
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<TABLE>
CORRESPONDING
CORRESPONDING INITIAL REMIC II COMPONENTS OF
INITIAL CLASS REMIC II REGULAR INTEREST CLASS X-1 OR
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE CLASS X-2
CERTIFICATES BALANCE INTERESTS (1) BALANCE CERTIFICATES (1)
------------- ------------- ------------- ---------------- ----------------
Class J $30,983,000 J-1 $13,032,000 J-1
J-2 $17,951,000 J-2
Class K $41,311,000 K-1 $ 3,875,000 K-1
K-2 $37,436,000 K-2
Class L $10,327,000 L $10,327,000 L
Class M $10,328,000 M $10,328,000 M
Class N $17,213,000 N $17,213,000 N
Class O $ 3,442,000 O $ 3,442,000 O
Class P $10,328,000 P $10,328,000 P
Class Q $10,328,000 Q $10,328,000 Q
Class S $41,311,199 S $41,311,199 S
</TABLE>
(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.
REMIC III
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 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.
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
REMIC III Initial Pass- Certificate Principal
Interest Through Balance or Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
----------- ------------- --------------------- --------------------
Class A-1 4.646% $121,200,000 6/13/2010
Class A-1A 4.946% $318,834,000 7/13/2015
Class A-2A 4.882% $294,875,000 8/13/2010
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Initial Aggregate
REMIC III Initial Pass- Certificate Principal
Interest Through Balance or Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
-------------- ------------- --------------------- --------------------
Class A-2B 4.913% $ 42,125,000 8/13/2010
Class A-AB 4.973% $ 111,100,000 12/13/2014
Class A-3 5.392% $ 103,000,000 10/13/2014
Class A-4A 4.989% $1,060,595,000 6/13/2015
Class A-4B 5.042% $ 151,514,000 6/13/2015
Class A-J 5.073% $ 175,571,000 7/13/2015
Class X-1 0.054% $2,754,054,199 3/13/2020
Class X-2 0.557% $2,672,241,000 8/13/2013
Class B 5.152% $ 24,098,000 7/13/2015
Class C 5.172% $ 34,425,000 7/13/2015
Class D 5.202% $ 27,541,000 7/13/2015
Class E 5.231% $ 24,098,000 7/13/2015
Class F 5.271% $ 27,541,000 7/13/2015
Class G 5.379% $ 27,540,000 7/13/2015
Class H 5.602% $ 34,426,000 7/13/2015
Class J 5.602% $ 30,983,000 7/13/2015
Class K 5.602% $ 41,311,000 7/13/2015
Class L 4.756% $ 10,327,000 8/13/2015
Class M 4.756% $ 10,328,000 8/13/2015
Class N 4.756% $ 17,213,000 8/13/2015
Class O 4.756% $ 3,442,000 8/13/2015
Class P 4.756% $ 10,328,000 8/13/2015
Class Q 4.756% $ 10,328,000 8/13/2015
Class S 4.756% $ 41,311,199 3/13/2020
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 REMIC III Certificates (other than the
Residual Certificates) will be determined as described herein under the
definition of "Pass-Through Rate." The initial Pass-Through Rates shown
above are approximate for the Class H, Class J, Class K, Class X-1 and
Class X-2 Certificates.
(b) The Final Scheduled Distribution Date for each Class of Certificates 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). Each ARD Loan
is assumed to repay in full on its Anticipated Repayment Date.
(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
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $2,754,054,199.
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EXCESS INTEREST GRANTOR TRUST
The parties intend that the portion of the Trust consisting of Excess
Interest and the Excess Interest Sub-account (such portion of the Trust, the
"Excess Interest Grantor Trust") will be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of the Code and the Class T Certificates
represent pro rata undivided beneficial interests in the Excess Interest Grantor
Trust. The Class T Certificates will have no Certificate Balance and no
Pass-Through Rate.
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:
"A NOTE" means, with respect to any A/B Mortgage Note, the mortgage
note(s) that is senior in right of payment to the related B Note to the extent
set forth in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of a Certificate Account (but which are not included in the
Trust) created and maintained by the applicable Master Servicer pursuant to
Section 5.1(c) on behalf of the holder of a related B Note. Any such
sub-account(s) shall be maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means the Coronado Center Loan Group, the County
Line Commerce Center Loan Group and the FRIS Chkn Loan Group or any other
mortgage loan serviced under this Agreement that is divided into senior mortgage
note(s) and a subordinated mortgage note, which senior mortgage note(s) is
included in the Trust (other than the FRIS Chkn Companion Loan, which is not
included in the Trust). References herein to an A/B Mortgage Loan shall be
construed to refer to the aggregate indebtedness under the related A Note and
the related B Note.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, other than
the Residual Certificates, interest accrued during the Interest Accrual Period
relating to such Distribution Date on the Aggregate Certificate Balance of such
Class or Interest as of the close of business on the immediately preceding
Distribution Date at the respective rates per annum set forth in the definition
of the applicable Pass-Through Rate for each such Class. Accrued Certificate
Interest on the Class X-1 Certificates and the Class X-2 Certificates for each
Distribution Date will equal the aggregate Accrued Component Interest for the
related Interest Accrual Period for all of their respective Components for such
Distribution Date.
"ACCRUED COMPONENT INTEREST" means, with respect to each Component of
the Class X-1 Certificates and the Class X-2 Certificates for any Distribution
Date, one month's
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interest at the Class X-1 Strip Rate and the Class X-2 Strip Rate, respectively,
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 the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan, Loan Pair and
any Loan Group).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the
applicable Master Servicer, the Special Servicer, any applicable Non-Serviced
Mortgage Loan Master Servicer, any applicable Non-Serviced Mortgage Loan Special
Servicer, the Trustee, the Paying Agent, the Fiscal Agent (or any other Person)
pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid,
any federal, state, or local taxes imposed on the Trust or its assets and paid
from amounts on deposit in a Certificate Account or Distribution Account and (v)
to the extent not otherwise 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) that the Trust has not recovered, and in the judgment of the
applicable Master Servicer (or 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; provided, however, that, in the case of
an A/B Mortgage Loan, "Additional Trust Expense" shall not include any of the
foregoing amounts that have been recovered from the related Mortgagor or
Mortgaged Property as a result of the subordination of the related B Note.
Notwithstanding anything to the contrary, "Additional Trust Expenses" shall not
include allocable overhead of a Master Servicer, the Special Servicer, any
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar or
the Fiscal Agent, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses, and similar internal
costs and expenses.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage Loan,
the sum of the Servicer Report Administrator Fee Rate, the related Master
Servicing Fee Rate, the Excess Servicing Fee Rate, the Trustee Fee Rate and in
the case of any Non-Serviced Mortgage Loan, the related Pari Passu Loan
Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
-7-
"ADVANCE INTEREST" means interest payable to the applicable Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent on outstanding
Advances (other than Unliquidated Advances) pursuant to Section 4.5 of this
Agreement and any interest payable to any Non-Serviced Mortgage Loan Master
Servicer or any Non-Serviced Mortgage Loan Trustee with respect to Pari Passu
Loan Nonrecoverable Advances pursuant to Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the Code,
if taken or not taken, as the case may be, would either (i) endanger the status
of the Excess Interest Grantor Trust as a grantor trust or (ii) result in the
imposition of a tax upon the income the Excess Interest Grantor Trust or any of
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,
the REMIC II Regular Interests 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, REMIC II Regular Interests or
REMIC III Regular Interests, Aggregate Certificate Balance shall mean the
aggregate of the Certificate Balances of all Certificates or Interests, as the
case may be, of that Class at any date of determination.
"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.
-8-
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD Loans, the
anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, B Note or
Loan Pair, 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, A/B
Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii) the date 30
days after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of a Mortgage Loan, A/B Mortgage Loan or Loan Pair, 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, A/B Mortgage Loan or Loan Pair (or, in
the case of an REO Property, the related REO Mortgage Loan) less the principal
amount of any guaranty or surety bond with a rating of at least "BBB-" (or its
equivalent) by a nationally recognized statistical rating organization and the
undrawn principal amount of any letter of credit or debt service reserve, if
applicable, that is then securing such Mortgage Loan, A/B Mortgage Loan or Loan
Pair, (ii) to the extent not previously advanced by the applicable Master
Servicer, the Trustee, or the Fiscal Agent, all accrued and unpaid interest on
such Mortgage Loan, A/B Mortgage Loan or Loan Pair 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 Loan Pair, 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 Special Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens and subject to any downward adjustments
that the Special Servicer may make (without implying any obligation to do so)
based upon its review of the Appraisal or such other information that it deems
appropriate) 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
-9-
Loan, A/B Mortgage Loan or a Loan Pair (less the estimated amount of the
obligations anticipated to be payable in the next twelve months to which such
escrows relate). Each Appraisal or internal valuation for a Required Appraisal
Loan shall be updated annually for so long as an Appraisal Reduction exists. 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, A/B Mortgage Loan or Loan Pair shall be reduced
to reflect any Realized Principal Losses on the Required Appraisal Loan or Loan
Pair. Each Appraisal Reduction will be reduced to zero as of the date the
related Mortgage Loan, A/B Mortgage Loan or Loan Pair is brought current under
the then current terms of the Mortgage Loan, A/B Mortgage Loan or Loan Pair for
at least three consecutive months, and no Appraisal Reduction will exist as to
any Mortgage Loan, A/B Mortgage Loan or Loan Pair after it has been paid in
full, liquidated, repurchased or otherwise disposed of. Any Appraisal Reduction
in respect of any Non-Serviced Mortgage Loan shall be calculated in accordance
with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement
based upon the applicable allocation thereunder of the items set forth in
clauses (A) and (B) above between the Non-Serviced Mortgage Loans and the
related Non-Serviced Companion Mortgage Loans and all other related pari passu
loans. Any Appraisal Reduction in respect of any Loan Pair shall be allocated,
as between a Serviced Pari Passu Mortgage Loan and the related Serviced
Companion Mortgage Loan, pro rata according to their respective Principal
Balances. Any Appraisal Reduction with respect to an A/B Mortgage Loan shall be
calculated in respect of such A/B Mortgage Loan taken as a whole and any such
Appraisal Reduction shall be allocated first to the related B Note, up to the
Principal Balance thereof, and any excess shall be allocated to the related A
Note. For purposes of P&I Advances and reporting in connection with any
Distribution Date, the applicable Master Servicer shall not be required to take
account of any downward adjustment(s) made by the Special Servicer as
contemplated by clause (B) above if the applicable Master Servicer has not
received notice of such downward adjustment(s) before the end of the Collection
Period related to such Distribution Date.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced 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
applicable Master Servicer or the Special Servicer, as applicable or, in the
case of an internal valuation performed by the Special Servicer pursuant to
Section 6.9, the value of the Mortgaged Property determined by such internal
valuation and (ii) with respect to the Mortgaged Property relating to a
Non-Serviced Mortgage Loan, the portion of the appraised value allocable
thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the Mortgage
Loan Schedule.
"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.
-10-
"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 or any B Note as to which advancing is required hereunder for its
Maturity Date (provided that such Mortgage Loan or B Note 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 or such B Note 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
or such B Note 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 or such B
Note granted or agreed to by the applicable Master Servicer or the Special
Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan or B Note
described in the preceding clause of this definition, the Assumed Scheduled
Payment) that was due in respect of the related Mortgage Loan or the related B
Note on the last Due Date prior to its becoming an REO Mortgage Loan. The amount
of the Assumed Scheduled Payment for any A Note or B Note shall be calculated
solely by reference to the terms of such A Note or B Note, as applicable (as
modified in connection with any bankruptcy or similar proceeding involving the
related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the applicable Master Servicer or the
Special Servicer pursuant to the terms hereof) and without regard to the
remittance provisions of the related Intercreditor Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth in
Section 4.6(a).
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of
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the commencement of business on such Distribution Date that represent payments
and other collections on or in respect of the Mortgage Loans and any REO
Properties that were received by the Master Servicers or the Special Servicer
through the end of the related Collection Period exclusive of (i) any such
amounts that were deposited in the Distribution Account in error, (ii) amounts
that are payable or reimbursable to any Person other than the Certificateholders
(including amounts payable to the applicable Master Servicer in respect of
unpaid Master Servicing Fees, the Special Servicer in respect of unpaid Special
Servicer Compensation, the Trustee in respect of unpaid Trustee Fees, the Paying
Agent in respect of unpaid Paying Agent Fees or to the parties entitled thereto
in respect of the unpaid Excess Servicing Fees), (iii) amounts that constitute
Prepayment Premiums, (iv) if such Distribution Date occurs during January, other
than in a leap year, or February of any year, the Interest Reserve Amounts with
respect to Interest Reserve Loans deposited in the Interest Reserve Account, (v)
in the case of each REO Property related to an A/B Mortgage Loan or Loan Pair,
all amounts received with respect to such A/B Mortgage Loan or Loan Pair that
are required to be paid to the holder of the related B Note or Serviced
Companion Mortgage Loan, as applicable, pursuant to the terms of the related B
Note or Serviced Companion Mortgage Loan, as applicable, and the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement (which amounts will
be deposited into the related A/B Loan Custodial Account or Serviced Companion
Mortgage Loan Custodial Account, as applicable, pursuant to Section 5.1(c) and
withdrawn from such accounts pursuant to Section 5.2(a)) and (vi) Scheduled
Payments collected but due on a Due Date subsequent to the related Collection
Period and (b) if and to the extent not already among the amounts described in
clause (a), (i) the aggregate amount of any P&I Advances made by the applicable
Master Servicer, the Trustee or the Fiscal Agent for such Distribution Date
pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any
Compensating Interest payments made by a Master Servicer for such Distribution
Date pursuant to the terms hereof, and (iii) if such Distribution Date occurs in
March of any year, commencing March 2006, the aggregate of the Interest Reserve
Amounts then held on deposit in the Interest Reserve Account in respect of each
Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a remaining principal balance equal to or greater than
5% of its original principal balance as of its stated maturity date, unless
prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
-12-
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium with respect to the Principal Prepayment
(or the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to that Principal Prepayment (or the current Discount Rate
if not used in such calculation), provided, however, that under no circumstances
will the Base Interest Fraction be greater than one. If the Discount Rate
referred to above is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Paying Agent and each Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of the Trust to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the applicable Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar or the Fiscal
Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, San Francisco,
California or the principal cities in which the Special Servicer, the Trustee,
the Paying Agent or any Master Servicer conducts servicing or trust operations,
or (iii) a day on which banking institutions or savings associations in
Minneapolis, Minnesota, Columbia, Maryland, New York, New York, Chicago,
Illinois or San Francisco, California are authorized or obligated by law or
executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. 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 Special Servicer to the applicable Master
Servicer), of each applicable Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the applicable Master Servicer (or any Sub-Servicer on behalf
of the applicable Master Servicer) pursuant to Section 5.1(a), each of which
shall be an Eligible Account.
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"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class T Certificates, the Class X Certificates and the Residual
Certificates) or Interest as of any Distribution Date, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth on
the face of such Certificate (in the case of a Certificate), or as ascribed
thereto herein (in the case of an Interest), minus (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, (ii)
all Realized Losses allocated or deemed to have been allocated to such Interest
or Certificate in reduction of Certificate Balance pursuant to Section 6.6, and
plus (B) an amount equal to the amounts identified in clause (I)(C) of the
definition of Principal Distribution Amount with respect to such Distribution
Date, 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. The Certificate Balance of each Component shall
equal the Certificate Balance of the Corresponding REMIC II Regular Interest.
"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 set forth 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 set forth in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class T Certificates, the Class R-I Certificates and the Class R-II
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 Interests, REMIC II
Interests, REMIC III Certificates, or Components, any Class of such
Certificates, Interests or Components.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2A
CERTIFICATES," "CLASS A-2B CERTIFICATES," "CLASS A-AB CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-4A CERTIFICATES," "CLASS A-4B CERTIFICATES," "CLASS A-J
CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS P CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS S
CERTIFICATES," "CLASS
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T 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-2A," "Class X-0X," "Xxxxx X-XX," "Class A-3," "Class A-4A,"
"Class 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," "Class P," "Class Q," "Class S,"
"Class T," "Class R-I," "Class R-II" and "Class R-III" respectively, on the face
thereof, in substantially the form attached hereto as Exhibits.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, Class
A-1A Certificates, the Class A-2 Certificates, the Class A-AB Certificates, the
Class A-3 Certificates, and the Class A-4 Certificates.
"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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance 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 Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-6.
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"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 Certificate Balance 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 Certificate Balance 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 Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A-9.
"CLASS A-2 CERTIFICATES" means the Class A-2A Certificates and the
Class A-2B Certificates, collectively.
"CLASS A-2A-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-1.
"CLASS A-2A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-2.
"CLASS A-2A-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A-3.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
"CLASS A-AB COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-AB Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-AB.
"CLASS A-3 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-3 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-3.
"CLASS A-4 CERTIFICATES" means the Class A-4A Certificates and the
Class A-4B Certificates, collectively.
"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 Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-1.
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"CLASS A-4A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance 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-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-3.
"CLASS A-4A-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-4.
"CLASS A-4A-5 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4A Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A-5.
"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
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-J.
"CLASS B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest B.
"CLASS C COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest C.
"CLASS D-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest D-2.
"CLASS E-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-1.
"CLASS E-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-2.
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"CLASS F-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Certificate Balance 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
Certificate Balance 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
Certificate Balance 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
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest H-2.
"CLASS J-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-1.
"CLASS J-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-2.
"CLASS K-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest K-1.
"CLASS K-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest K-2.
"CLASS L COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Certificate Balance 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
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest N.
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"CLASS O COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest P.
"CLASS Q COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class Q Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest Q.
"CLASS S COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class S Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest S.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates as of the close of business on the preceding Distribution Date.
"CLASS X-1 STRIP RATE" means, with respect to any Class of 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 IX 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 Class A-1A-2 Component, the Distribution Date
occurring in August 2006; (ii) with respect to the Class A-1-3 Component, Class
A-1A-3 Component, Class A-2A-1 Component, Class K-1 Component, Class L
Component, Class M Component and Class N Component, the Distribution Date
occurring in August 2007; (iii) with respect to the Class A-1A-4 Component,
Class A-2A-2 Component, Class J-1 Component and Class K-2 Component, the
Distribution Date occurring in August 2008; (iv) with respect to the Class
A-1A-5 Component, Class A-2A-3 Component, Class A-2B Component, Class A-3
Component, Class A-AB Component, Class A-4A-1 Component, Class H-1 Component and
Class J-2 Component, the Distribution Date occurring in August 2009; (v) with
respect to the Class A-1A-6
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Component, Class A-4A-2 Component, Class F-1 Component, Class G Component and
Class H-2 Component, the Distribution Date occurring in August 2010; (vi) with
respect to the Class A-1A-7 Component, Class A-4A-3 Component, Class E-1
Component and Class F-2 Component, the Distribution Date occurring in August
2011; (vii) with respect to the Class A-1A-8 Component, Class A-4A-4 Component,
Class D-1 Component and Class E-2 Component, the Distribution Date occurring in
August 2012; (viii) with respect to the Class A-1A-9 Component, Class A-4A-5
Component, Class A-4B Component, Class A-J Component, Class B Component, Class C
Component and Class D-2 Component, the Distribution Date occurring in August
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-2A-1
Component, Class A-2A-2 Component, Class A-2A-3 Component, Class A-2B Component,
Class A-3 Component, Class A-AB Component, Class A-4A-1 Component, Class A-4A-2
Component, Class A-4A-3 Component, Class A-4A-4 Component, Class A-4A-5
Component, Class A-4B Component, Class A-J Component, Class B Component, Class C
Component, Class D-1 Component, Class D-2 Component, Class E-1 Component, Class
E-2 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-1 Component, Class K-2 Component, Class L Component, Class M
Component and Class N Component, in each case, only as of any date of
determination on or prior to its respective Class X-2 Component Crossover Date.
"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 that have
not passed their respective Class X-2 Component Crossover Dates.
"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 IX 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.
"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 BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means August 11, 2005.
"CMSA" means the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees,
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certificateholders, issuers, the placement agent and underwriters generally
involved in the commercial mortgage loan securitization industry, which is the
principal such association or organization in the commercial mortgage loan
securitization industry and whose principal purpose is the establishment of
industry standards for reporting transaction-specific information relating to
commercial mortgage pass-through certificates and commercial mortgage-backed
bonds and the commercial mortgage loans and foreclosed properties underlying or
backing them to investors holding or owning such certificates or bonds, and any
successor to such other association or organization. If an organization or
association described in one of the preceding sentences of this definition does
not exist, "CMSA" shall be deemed to refer to such other association or
organization as shall be selected by the Master Servicers and reasonably
acceptable to the Trustee, the Paying Agent, the Special Servicer and the
majority certificateholder of the Controlling Class.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of the Mortgage Loans serviced by the applicable
Master Servicer other than the Specially Serviced Mortgage Loans resulting from
(x) voluntary Principal Prepayments on such Mortgage Loans serviced by such
applicable Master Servicer (but not including any B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion Mortgage Loan) or (y) to the extent that the
applicable Master Servicer did not apply the proceeds thereof in accordance with
the terms of the related Mortgage Loan documents or enforce such terms,
involuntary Principal Prepayments during the related Collection Period over (ii)
the aggregate of Prepayment Interest Excesses resulting from Principal
Prepayments on the Mortgage Loans (but not including any B Note, Non-Serviced
Companion Mortgage Loan or Serviced Companion Mortgage Loan) during the same
Collection Period and (B) the aggregate of the portion of the aggregate Master
Servicing Fee accrued by the applicable Master Servicer at a rate per annum
equal to 2 basis points for the related Collection Period calculated in respect
of all the Mortgage Loans (including REO Mortgage Loans but not including any B
Note, Non-Serviced Companion Mortgage Loan
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or Serviced Companion Mortgage Loan); provided, however that if a Prepayment
Interest Shortfall on a Mortgage Loan (but not including any B Note,
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage Loan)
results due to the applicable Master Servicer's failure to enforce the terms of
the applicable Mortgage Loan documents, the 2 basis point limitation shall not
be applicable with respect to such Mortgage Loan and in such event, the amount
specified in clause (B) above shall also include any investment income earned on
the amount prepaid with respect to such Mortgage Loan prior to such Distribution
Date.
"COMPONENT" means any of the Class A-1-1 Component, the Class A-1-2
Component, the Class A-1-3 Component, the Class A-1A-1 Component, the Class
A-1A-2 Component, the Class A-1A-3 Component, the Class A-1A-4 Component, the
Class A-1A-5 Component, the Class A-1A-6 Component, the Class A-1A-7 Component,
the Class A-1A-8 Component, the Class A-1A-9 Component, the Class A-2A-1
Component, the Class A-2A-2 Component, the Class A-2A-3 Component, the Class
A-2B Component, the Class A-AB Component, the Class A-3 Component, Class A-4A-1
Component, the Class A-4A-2 Component, the Class A-4A-3 Component, the Class
A-4A-4 Component, the Class A-4A-5 Component, the Class A-4B Component, the
Class A-J Component, the Class B Component, the Class C Component, the Class D-1
Component, the Class D-2 Component, the Class E-1 Component, the Class E-2
Component, the Class F-1 Component, the Class F-2 Component, the Class G
Component, the Class H-1 Component, the Class H-2 Component, the Class J-1
Component, the Class J-2 Component, the Class K-1 Component, the Class K-2
Component, the Class L Component, the Class M Component. the Class N Component,
the Class O Component, the Class P Component, the Class Q Component and the
Class S 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 authority, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable)
its related B Note or Serviced Companion Mortgage Loan. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Condemnation
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage or A Note, as applicable, shall be included
in Condemnation Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC Regular
Certificates outstanding at any time of determination; provided, that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular
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Certificates outstanding. As of the Closing Date, the Controlling Class will be
the Class S Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORONADO CENTER B NOTE" means, with respect to the Coronado Center
Mortgage Loan, the related subordinated Mortgage Note, which is not included in
the Trust and which is subordinated in right of payment to the Coronado Center
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
The Coronado Center B Note is not a Mortgage Loan.
"CORONADO CENTER LOAN GROUP" means the Coronado Center Mortgage Loan
and the Coronado Center B Note.
"CORONADO CENTER MORTGAGE" means the Mortgage securing the Coronado
Center Loan Group.
"CORONADO CENTER MORTGAGE LOAN" means the mortgage loan designated as
Mortgage Loan No. 165, which is secured on a senior basis with the Coronado
Center B Note pursuant to the Coronado Center Mortgage. The Coronado Center
Mortgage Loan is a Mortgage Loan.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Global Securities and Trust Services Group--
Xxxxxx Xxxxxxx Capital I Inc. Series 2005-HQ6 and the office of the Certificate
Registrar is presently located for certificate transfer purposes at Xxxxx Fargo
Center, Sixth and Marquette Avenue, MAC #N9303 000, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, Attention: Corporate Trust Services Group Xxxxxx Xxxxxxx Corporate
Capital I Inc. Series 2005-HQ6, and for all other purposes at 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS)
Xxxxxx Xxxxxxx Capital I Series 2005-HQ6, 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, the Paying Agent
and the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates 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 any
Corresponding REMIC II Regular Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan the REMIC I Regular Interest having an initial Certificate Balance
equal to the
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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.
"COUNTY LINE COMMERCE CENTER B NOTE" means, with respect to the County
Line Commerce Center Mortgage Loan, the related subordinate note, which is not
included in the Trust and which is subordinated in right of payment to the
County Line Commerce Center Mortgage Loan to the extent set forth in the related
Intercreditor Agreement. The County Line Commerce Center B Note is not a
Mortgage Loan.
"COUNTY LINE COMMERCE CENTER LOAN GROUP" means the County Line
Commerce Center Mortgage Loan and the County Line Commerce Center B Note.
"COUNTY LINE COMMERCE CENTER MORTGAGE" means the Mortgage securing the
County Line Commerce Center Loan Group.
"COUNTY LINE COMMERCE CENTER MORTGAGE LOAN" means the mortgage loan
designated as Mortgage Loan No. 181, which is secured on a senior basis with the
County Line Commerce Center B Note pursuant to the County Line Commerce Center
Mortgage. The County Line Commerce Center Mortgage Loan is a Mortgage Loan.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"CROSSROADS CENTER MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan Nos. 444 on the Mortgage Loan Schedule.
"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 August 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 August 1, 2005, and
Scheduled Payments due in August 2005 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on August 1,
2005, not the actual day on which such Scheduled Payments were due.
"DBRS" means Dominion Bond Rating Service, Inc. or its successor in
interest.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T.
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"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, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced Companion
Mortgage Loan that is in default under the terms of the applicable Mortgage Loan
documentation and for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the 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, Serviced Companion Mortgage
Loan or B Note which requires or permits the related Mortgagor (or permits the
holder of such Mortgage Loan, Serviced Companion Mortgage Loan or B Note to
require the related Mortgagor) to pledge Defeasance Collateral to such holder in
lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan (other
than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage Loan or
any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged
Property (or, with respect to a Non-Serviced Mortgage Loan or a Serviced Pari
Passu Mortgage Loan, the pro rata portion of the valuation allocable to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan, as applicable)
relating to such Mortgage Loan, A/B Mortgage Loan or Loan Pair in an amount less
than the then outstanding indebtedness under such Mortgage Loan, A/B Mortgage
Loan or Loan Pair, 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, A/B
Mortgage Loan or Loan Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
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"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 Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 8th 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
in September 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 Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents,
is the yield calculated by the linear interpolation of the yields, as reported
in Federal Reserve Statistical Release H.15--Selected Interest Rates under the
heading "U.S. government securities/Treasury constant maturities" for the week
ending prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicers 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
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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 a Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class (or in the case of Classes A-2A and A-2B, such
Classes collectively or individually as the context may require or in the case
of Classes A-4A and A-4B, such Classes collectively or individually as the
context may require) of Certificates (other than the Residual Certificates) or
Interests, the sum of (A) Accrued Certificate Interest in respect of such Class
or Classes or Interest, reduced (to not less than zero) by (i) any Net Aggregate
Prepayment Interest Shortfalls for such Class or Classes of Certificates or
Interests, allocated on such Distribution Date to such Class or Classes 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 Classes or Interest pursuant to Section 6.6, plus (B) the Unpaid
Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 13th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing September
13, 2005.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P, "F-1" by Fitch, if the deposits are to
be held in the account for 30 days or less, and "R-1(middle)" by DBRS or, if not
rated by DBRS, an equivalent rating such as those listed above by at least two
nationally recognized statistical rating organizations (which may include S&P,
Fitch and/or Xxxxx'x), in the case of accounts in which funds are held for 30
days or less or (B) long-term unsecured debt obligations are rated at least
"AA-" by S&P (or "A" (without regard to any plus or minus), if the short-term
unsecured debt obligations are rated at least "A-1"), at least "AA-" by Fitch,
if the deposits are to be held in the account more than 30 days, and at least
"AA(low)" by DBRS (or if not rated by DBRS, an equivalent rating (such as those
listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations (which may include S&P, Fitch and/or Xxxxx'x)),
or (ii) a segregated trust account or accounts maintained in the
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trust department of the Trustee or other financial institution having a combined
capital and surplus of at least $50,000,000 and subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), or (iii) an account or accounts of a depository
institution acceptable to each Rating Agency, as evidenced by Rating Agency
Confirmation with respect to the use of any such account as a Certificate
Account or the Distribution Account. Notwithstanding anything in the foregoing
to the contrary, an account shall not fail to be an Eligible Account solely
because it is maintained with Xxxxx Fargo Bank, National Association or Xxxxx
Fargo Bank Iowa, N.A., each a wholly-owned subsidiary of Xxxxx Fargo & Co.,
provided that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "A-1" in
the case of S&P, "F-1" in the case of Fitch and "R-1(middle)" in the case of
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations), if the deposits are to be held in the account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at least "AA-" (or
"A" (without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") in the case of S&P, at least "A+" in the
case of Fitch, and at least "AA(low)" in the case of DBRS (or, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations), if the
deposits are to be held in the account for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicers, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicers, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "F-1" by Fitch, "A-1" by S&P and "R-1(middle)" by DBRS
(or, if not rated by DBRS, an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations) or the long-term unsecured debt obligations of such depository
institution or trust company have been assigned a rating by each Rating Agency
at least equal "AA" by Fitch, "AA-" by S&P or its equivalent and "AA(low)" by
DBRS (or, if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations) or, in each case, if not rated by a Rating Agency, then such
Rating Agency has issued a Rating Agency Confirmation;
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(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 "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in 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 a 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
"F-1" by Fitch and "A-1" by S&P and "R-1(middle)" by DBRS (and, if not rated by
DBRS, an equivalent rating (such as those listed above for Fitch and S&P) by at
least two nationally recognized statistical rating organizations) (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 highest long-term category by Fitch, or if not rated by Fitch,
then Fitch has issued a Rating Agency Confirmation, "AAAm" by S&P and "AAA" by
DBRS, or if not rated by DBRS, an equivalent rating (such as those listed above
for Fitch and S&P) by at least two nationally recognized statistical rating
organizations;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" by Fitch, "AA-" by S&P, or
for which Rating Agency Confirmation is obtained with respect to such ratings
and "AA(low)" by DBRS (or, if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations);
(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 "AAAm" or "AAAm-G" (or its equivalent rating) by S&P, "AAA" (or
its equivalent rating) by Fitch, and "AAA" (or its equivalent) by DBRS (and, if
not rated by DBRS, an equivalent rating by at least two nationally recognized
statistical rating organizations) 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
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Paying Agent by the applicable Master Servicer at such Master Servicer's
expense), as are acceptable to the Rating Agencies (as evidenced by Rating
Agency Confirmation) and treated as "permitted investments" that are "cash flow
investments" under 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 applicable
Certificate Account) 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.
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"ESCROW ACCOUNT" means an account established by or on behalf of a
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan held by the Trust
if an ARD Loan is not prepaid in full on or before its Anticipated Repayment
Date, the excess, if any of (i) interest accrued at the rate of interest
applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any
interest on such interest as may be provided for under the related 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 held by the Trust is an asset of the Trust, but shall not be an asset of
any REMIC Pool formed hereunder.
"EXCESS INTEREST GRANTOR TRUST" means that portion of the Trust that
evidences beneficial ownership of the Excess Interest and the Excess Interest
Sub-account, as described in Section 12.5(a) hereof.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed
to be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note, or, in
the case of an REO Property related to a Loan Pair, a Principal Prepayment in
full had been made with respect to both the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds were
received, including, without duplication, accrued and unpaid interest with
respect to such Mortgage Loan and any 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 or
the Serviced Companion Mortgage Loans for which an "excess servicing fee rate"
is designated on the Mortgage Loan Schedule, the monthly fee payable to Xxxxx
Fargo Bank, National Association or Prudential Asset Resources, Inc., as
applicable, or their related successors and assigns as holder of excess
servicing rights, which fee shall accrue on the Scheduled Principal
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Balance of each such Mortgage Loan or Serviced Companion 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"). The holder of excess servicing rights is entitled
to Excess Servicing Fees only with respect to the Mortgage Loans or Serviced
Companion Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation of asset pool
investment trusts granted by the United States Department of Labor to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note or Serviced Companion Mortgage Loan by a Master
Servicer in consultation with the Operating Adviser, or by the Special Servicer
in the case of a Specially Serviced Mortgage Loan (including a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B Note that became an REO Property), in
each case, in its good faith discretion, consistent with the Servicing Standard,
that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Purchase Proceeds and other payments or recoveries that the applicable Master
Servicer or the Special Servicer, as the case may be, expects to be finally
recoverable on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note,
without regard to any obligation of the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, to make payments
from its own funds pursuant to Article IV hereof, have been recovered. The
Special Servicer shall be required to provide the applicable Master Servicer
with prompt written notice of any Final Recovery Determination with respect to
any Specially Serviced Mortgage Loan upon making such determination. The
applicable Master
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Servicer shall notify the Trustee and the Paying Agent of such determination and
the Paying Agent shall deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FINANCIAL MARKET PUBLISHERS" means Xxxxx, LLC and Intex Solutions,
Inc., or any successor entities thereof.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
7.19.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FRIS CHKN PORTFOLIO B NOTE" means, with respect to the FRIS Chkn
Portfolio Pari Passu Loan, the FRIS Chkn Portfolio B Note, which is a
subordinated mortgage note that is not included in the Trust. The FRIS Chkn
Portfolio B Note is not a Mortgage Loan.
"FRIS CHKN PORTFOLIO COMPANION LOAN" means the loan that is secured by
the FRIS Chkn Portfolio Pari Passu Mortgage on a pari passu basis with the FRIS
Chkn Portfolio Pari Passu Loan. The FRIS Chkn Portfolio Companion Loan is not a
Mortgage Loan.
"FRIS CHKN PORTFOLIO LOAN GROUP" means, collectively, the FRIS Chkn
Portfolio Pari Passu Loan, the FRIS Chkn Portfolio Companion Loan and the FRIS
Chkn Portfolio B Note.
"FRIS CHKN PORTFOLIO PARI PASSU LOAN" means Mortgage Loan Nos.
182-373, which is secured on a pari passu basis with the FRIS Chkn Portfolio
Companion Loan pursuant to the FRIS Chkn Portfolio Pari Passu Mortgage.
"FRIS CHKN PORTFOLIO PARI PASSU MORTGAGE" means the mortgage securing
the FRIS Chkn Portfolio Pari Passu Loan, the FRIS Chkn Portfolio Companion Loan
and the FRIS Chkn Portfolio B Note.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
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"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 Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the applicable Master Servicer (other than such 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 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 Class R-III
Certificates), a Percentage Interest of 35% or more in the Class R-III
Certificates or such other interest in any Class of the Certificates or of the
applicable REMIC 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 Pool is at arm's length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other Person
(including the applicable Master Servicer or the Special Servicer) upon receipt
by the Trustee of an Opinion of Counsel, which shall be at the expense of the
Person delivering such opinion to the Trustee, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INITIAL REVIEW PERIOD" has the meaning set forth in Section 9.4(d).
"INSPECTION REPORT" means the report delivered by a Master Servicer or
the Special Servicer, as the case may be, substantially in the form of Exhibit L
hereto.
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"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, 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
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note and B Note, as the same may be further
amended from time to time in accordance with the terms thereof.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Paying Agent pursuant to Section 5.3(a), which account shall
be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicers, the Special Servicer, the Depositor, the holder of any related Junior
Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by a Master Servicer or the Special Servicer pursuant to this Agreement,
or any Person actually known to a Responsible Officer of the Trustee to be an
Affiliate of any of them.
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"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"LATE FEE" means a fee payable to the applicable Master Servicer or
the Special Servicer, as the case may be, to the extent actually collected from
the Mortgagor as provided in the related Mortgage Loan, Serviced Companion
Mortgage Loan or the related B Note in connection with a late payment made by
such Mortgagor. References in this Agreement to Late Fees and default interest
in respect of any Loan Pair or in respect of any Non-Serviced Mortgage Loan and
its related Non-Serviced Companion Mortgage Loan shall mean only the portion
thereof that is received by the Trust in accordance with the applicable Loan
Pair Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor
Agreement.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses in connection with a closing, brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses
relating to the 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 the Special Servicer, subject to Section 4.4 and
Section 4.6(e) hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property and any Condemnation Proceeds
and Insurance Proceeds received by the Trust (other than Liquidation Proceeds
received in connection with any Non-Serviced Mortgage Loan) for distribution to
the Certificateholders and the holders of any Serviced Companion Mortgage Loans
and B Notes; provided, however, that (i) in the case of a final disposition
consisting of the repurchase of a Mortgage Loan or REO Property by a Seller
pursuant to Section 2.3, such fee will only be paid by the applicable Seller if
repurchased after the date that is 180 days after such Seller receives notice of
the breach or defect causing the repurchase, (ii) in the case of an A/B Mortgage
Loan, such fee will not be payable if the holder of the related B Note exercises
its option to purchase the related A Note pursuant to the Intercreditor
Agreement; provided, that, this clause (ii) shall not be applicable if the
holder of the related B Note has exercised its right to cure three consecutive
monetary defaults under the related Intercreditor Agreement and a monetary
default occurs in the following month and (iii) in the case of a Mezzanine
Mortgage Loan, such fee will not be payable if the holder of the related
Mezzanine Loan exercises its option to purchase the related Mortgage Loan
pursuant to the related Mezzanine Mortgage Loan Intercreditor Agreement;
provided, that, to the extent permitted by the terms of the related Mezzanine
Mortgage Loan Intercreditor Agreement, this
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clause (iii) shall not be applicable if the holder of the related Mezzanine Loan
has exercised its right to cure three consecutive monetary defaults under the
Mezzanine Mortgage Loan Intercreditor Agreement and a monetary default occurs in
the following month or such purchase occurs more than 90 days after the Mortgage
Loan becomes a Specially Serviced Mortgage Loan. Notwithstanding the foregoing,
if the terms of the related Mezzanine Mortgage Loan Intercreditor Agreement
exclude under certain circumstances the payment of any liquidation fee (or
similar fee) when calculating the applicable purchase price pursuant to the
exercise of any such purchase option, then no Liquidation Fee will be payable
under this Agreement under such circumstances.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of
a Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note or related REO
Property (net of Liquidation Expenses) and with respect to the sale or
liquidation of any REO Property related to any Non-Serviced Mortgage Loan and
Non-Serviced Companion Mortgage Loan, any portion of such amounts allocable to
the related Non-Serviced Mortgage Loan.
"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 (as increased by an Unliquidated Advance with respect
to such Mortgage Loan) of the Mortgage Loan (or such deemed Principal Balance,
in the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or
REO Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses (including Additional Trust
Expenses, unpaid Servicing Advances and unpaid Advance Interest) incurred in
connection with such Mortgage Loan that have been paid or are payable or
reimbursable to any Person, other than amounts included in the definition of
Liquidation Expenses and amounts previously treated as Expense Losses
attributable to principal (and interest thereon) minus the sum of (i) REO Income
applied as recoveries of principal or interest on the related Mortgage Loan or
REO Property, and (ii) Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, Late Collections and all other amounts recovered from the related
Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred and which are not required under any
Intercreditor Agreement, any Loan Pair Intercreditor Agreement or Non-Serviced
Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any
holder of a B Note, a Serviced Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income received on an REO Property and Liquidation
Proceeds received on or in respect of a Mortgage Loan or REO Property shall be
applied first to reimburse the applicable Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, as applicable, to the extent that Section
5.2(a)(I) otherwise entitles such party to reimbursement, for any Nonrecoverable
Advance with respect to the related Mortgage Loan not otherwise reimbursed, and
then for all Workout-Delayed Reimbursement Amounts with respect to such related
Mortgage Loan (but not any such amount that has become Unliquidated Advances),
and any remaining REO Income and Liquidation Proceeds and any Condemnation
Proceeds and Insurance Proceeds shall be applied first against any Additional
Trust Expenses (to the extent not included in the definition of Liquidation
Expenses) for such Mortgage Loan, next as a recovery of any Nonrecoverable
Advance (and interest thereon) with respect to such Mortgage Loan previously
paid from principal collections pursuant to Section 5.2(a)(II), next to any
Unliquidated Advances with respect to such Mortgage Loan, next to the unpaid
interest on the Mortgage Loan, calculated as
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described in clause (B) above, and then against the Principal Balance of such
Mortgage Loan, calculated as described in clause (A) above.
"LOAN GROUP" means either Loan Group 1 or Loan Group 2, as the case
may be.
"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 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 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 PAIR" means a Serviced Pari Passu Mortgage Loan and the related
Serviced Companion Mortgage Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the
allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
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"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 applicable Master 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.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means (a) Prudential Asset Resources, Inc. and its
permitted successors and assigns with respect to the PMCF Loans and (b) Xxxxx
Fargo Bank, National Association and its permitted successors and assigns with
respect to the MSMC Loans, the Xxxxx Fargo Loans and the SunTrust Loans. Any
reference herein to a "Master Servicer" hereunder shall, if such Master Servicer
is the one described by clause (a) of this definition, also be construed to
refer to the Servicer Report Administrator to the extent of the rights granted
to and obligations imposed on the Servicer Report Administrator under this
Agreement.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in Section
8.3(a).
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in Section 8.25(a).
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Servicer Report Administrator or a Master Servicer, as the case may be, and in
such media as may be agreed upon by the Master Servicers and the Paying Agent
containing such information regarding the Mortgage Loans as will permit the
Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report required to be delivered hereunder and containing such
additional information as the Master Servicers, the Paying Agent and the
Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means, with respect to the applicable Master
Servicer, for each calendar month, as to each Mortgage Loan, Serviced Companion
Mortgage Loan and B Note (including REO Mortgage Loans and Defeasance Loans) but
not as to any Non-Serviced Mortgage Loan (as to which there is no Master
Servicing Fee payable to the applicable Master Servicer under this Trust), 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, Serviced
Companion Mortgage Loan or B Note for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan,
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Serviced Companion Mortgage Loan or B Note immediately before the Due Date
occurring in such month, subject to reduction in respect of Compensating
Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to the applicable
Master Servicer, with respect to each Mortgage Loan (other than any Non-Serviced
Mortgage Loan), Serviced Companion Mortgage Loan and B Note (including any
Mortgage Loan relating to an REO Property), the rate per annum specified as such
on the Mortgage Loan Schedule. With respect to a Non-Serviced Mortgage Loan, no
Master Servicing Fee Rate is charged by a Master Servicer, but the Pari Passu
Loan Servicing Fee Rate is charged by the applicable Non-Serviced Mortgage Loan
Master Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"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, Serviced
Companion Mortgage Loan or B Note as of any date of determination, the date on
which the last payment of principal is due and payable thereunder, after taking
into account all Principal Prepayments received and any Deficient Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note occurring prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note or (ii) any grace
period permitted by such Mortgage Loan, B Note or Serviced Companion Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MEZZANINE MORTGAGE LOAN" means any Mortgage Loan serviced under this
Agreement that has additional subordinated mezzanine financing in place, which
Mezzanine Mortgage Loan is included in the Trust.
"MEZZANINE LOAN" means, with respect to any Mezzanine Mortgage Loan,
the related mezzanine financing which is not included in the Trust and is
subordinated in right of payment to the related Mezzanine Mortgage Loan to the
extent set forth in the related Mezzanine Mortgage Loan Intercreditor Agreement.
"MEZZANINE MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, with respect
to a Mezzanine Mortgage Loan, the related intercreditor agreement by and between
the holder of the related Mezzanine Mortgage Loan and the holder of the related
Mezzanine Loan relating to the relative rights of such holders of such Mezzanine
Mortgage Loan and Mezzanine Loan, as the same may be further amended from time
to time in accordance with the terms thereof.
"MODIFICATION FEE" means a fee, if any, (a) collected from a Mortgagor
by the applicable Master Servicer in connection with a modification of any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note other than a Specially Serviced Mortgage Loan or (b)
collected in connection with a modification by the Special Servicer of a
Specially Serviced Mortgage Loan.
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"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the 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, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into a
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 a 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 Special Servicing Fee, the
Excess Servicing Fees and the fees paid to the applicable Non-Serviced Mortgage
Loan Master Servicer and the Non-Serviced Mortgage Loan Special Servicer solely
as such fees relate to the Non-Serviced Mortgage Loans; (xi) the amount of
Unpaid Interest and Realized Losses, if any, incurred with respect to the
Mortgage Loans, including a breakout by type of such Realized Losses; (xii) the
aggregate amount of Servicing Advances and the aggregate amount of P&I Advances
outstanding, each separately stated, that have been made by the applicable
Master
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Servicer, the Special Servicer, the Trustee and the Fiscal Agent and the
aggregate amount of Servicing Advances and P&I Advances made by the applicable
Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan
Special Servicer in respect of the Non-Serviced Mortgage Loans and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date (and in the case of the Non-Serviced Mortgage Loans, the
amount of any appraisal reductions effected under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement). In the case of information
furnished pursuant to subclauses (i), (ii) and (xi) above, the amounts shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
principal amount of the Certificates for all Certificates of each applicable
Class.
"XXXXX'X" means Xxxxx'x Investors Services, Inc.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ6, without recourse, representation or
warranty other than as set forth in the Mortgage Loan Purchase Agreement" 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 45th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true
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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 "LaSalle Bank National Association, as Trustee for Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6;" provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no Assignment of Mortgage in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Seller shall
take all actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown as, the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), 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 Seller, a copy thereof certified by the
Seller or, if any original intervening assignment of Mortgage has not yet been
returned on or prior to the 45th day following the Closing Date from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the applicable Seller
to be a true and complete copy of the original Assignment of Leases submitted
for recording, together with (A) an original of each assignment of such
Assignment of Leases with evidence of recording thereon and showing a complete
recorded chain of assignment from the named assignee to the holder of record,
and if any such assignment of such Assignment of Leases has not been returned
from the applicable public recording office, a copy of such assignment certified
by the applicable Seller to be a true and complete copy of the original
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assignment submitted for recording, and (B) an original assignment of such
Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6,"
which assignment may be effected in the related Assignment of Mortgage;
provided, if the related Assignment of Leases has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, the applicable
Seller shall take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Assignment of Leases on the record of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee duly
authorized and executed and delivered in connection with the Mortgage Loan;
provided, if the related Mortgage has been recorded in the name of MERS or its
designee, no such UCC-2 or UCC-3 financing statements will be required to be
recorded or delivered and instead, the applicable Seller shall take all actions
as are necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the related
UCC financing statements on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS;
(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;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the applicable Master Servicer, and applied, drawn, reduced or released
in accordance with documents evidencing or securing the applicable Mortgage Loan
and this Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the applicable Master Servicer on behalf of the Trustee, with a copy to be
held by the Trustee, and applied,
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drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan and this 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 a Seller to assign the letter of credit
hereunder). In the case of clause (B) above, the applicable Master Servicer
acknowledges that any letter of credit held by it shall be held in its capacity
as agent of the Trust, and if such Master Servicer sells its rights to service
the applicable Mortgage Loan, such Master Servicer will assign the applicable
letter of credit to the Trust or at the direction of the Special Servicer (with
respect to any Specially Serviced Mortgage Loan) to such party as the Special
Servicer may instruct, in each case, at the expense of the Master Servicer. The
applicable Master Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged Properties
operated as hotels and for all Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of copies of
the documents specified above (other than the Mortgage Notes (and all
intervening endorsements) respectively evidencing such Non-Serviced Mortgage
Loan with respect to which the originals shall be required), including a copy of
such Non-Serviced Mortgage Loan Mortgage.
"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, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III and Mortgage Loan Purchase Agreement IV, as the case may be.
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"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of July 29, 2005 with
respect 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 PMCF and the Depositor dated as of July 29, 2005 with
respect to the PMCF 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 Xxxxx Fargo and the Depositor dated as of July
29, 2005 with respect to the Xxxxx Fargo 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 SunTrust and the Depositor dated as of July 29, 2005
with respect to the SunTrust Loans, a form of which is attached hereto as
Exhibit K-4.
"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 PMCF Loan, the
schedule attached hereto as Schedule III, which identifies each Xxxxx Fargo Loan
and the schedule attached hereto as Schedule IV, 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 RATE" means, for a given Mortgage Loan, Serviced Companion
Mortgage Loan or B Note, the per annum rate at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion 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 set forth 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.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the
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sum of (A) the Compensating Interest to be paid by the applicable Master
Servicer on such Distribution Date and (B) the aggregate Prepayment Interest
Excesses for such Collection Period for all Mortgage Loans which are not
Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action (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 and
(ii) will not cause the Excess Interest Grantor Trust to fail to qualify as a
grantor trust under the Code.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of Fitch, S&P and DBRS.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued thereon at the
Advance Rate) and (ii) the portion of any Advance (including interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including interest
thereon) previously made (and in the case of an Unliquidated Advance, not
previously reimbursed to the Trust) or proposed to be made by the applicable
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, that, in
its respective sole discretion, exercised in good faith and, with respect to the
applicable Master Servicer and the Special Servicer, taking into account the
Servicing Standard, will not be or, in the case of an outstanding Advance, 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 Serviced Companion Mortgage Loan (and
taking into consideration any Crossed Mortgage Loans) (in the case of Servicing
Advances) or B Note (in the case of Servicing Advances) or REO Property (in the
case of P&I Advances and Servicing Advances), as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. Such Officer's Certificate shall
be delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee or the Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer and the Paying Agent
in the time periods as specified in Section 4.4 and shall include the
information and reports set forth in Section 4.4. Absent bad faith, the
applicable Master Servicer's determination as to the recoverability of any
Advance shall be conclusive and binding on the Certificateholders and, in
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the case of any B Note or Serviced Companion Mortgage Loan, the holder of such B
Note or Serviced Companion Mortgage Loan, as applicable, and may, in all cases,
be relied on by the Trustee and the Fiscal Agent; provided, however, that the
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 applicable Master Servicer,
the Paying Agent and the Trustee notice of such determination. Absent bad faith,
any such determination shall be conclusive and binding on the
Certificateholders, the applicable Master Servicer, the Trustee and the Fiscal
Agent (provided that the Master Servicer's determination that a P&I Advance or
Servicing Advance, if made, would be a Nonrecoverable Advance shall not be
overruled by any such determination). Absent bad faith, and pursuant to Section
4.1A of this Agreement, any determination as to the recoverability of any
advance made with respect to any Non-Serviced Mortgage Loan by the applicable
Master Servicer or any Other Master Servicer shall be conclusive and binding on
the Certificateholders and may, in all cases, be relied on by the Trustee, the
Fiscal Agent and the applicable Master Servicer. 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 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
Special Servicer (among other things), future expenses and (iv) to estimate and
consider, consistent with the Servicing Standard (among other things), the
timing of recovery to such party. In addition, the relevant party may,
consistent with the Servicing Standard in the case of the applicable Master
Servicer or the 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 Special Servicer, obtain from the Special Servicer any analysis,
appraisals or other information in the possession of the Special Servicer for
such purposes. In connection with the determination of whether an advance made
would be a Nonrecoverable Advance relating to a B Note, the applicable Master
Servicer and Special Servicer shall also take into account (among other things)
any insurance proceeds and condemnation proceeds (in excess of such proceeds
payable in respect of the related A Note) received in respect of the Mortgaged
Properties.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the 1933 Act, any Class X-1, Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class O, Class P, Class Q, Class S, Class T or Residual Certificate.
"NON-SERVICED COMPANION MORTGAGE LOAN" means a loan not included in
the Trust that is generally payable on a pari passu basis with the related
Non-Serviced Mortgage Loan. There are no Non-Serviced Companion Mortgage Loans
in the Trust.
"NON-SERVICED MORTGAGE LOAN" means any Mortgage Loan included in the
Trust but serviced under another agreement. There are no Non-Serviced Mortgage
Loans in the Trust.
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"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, with
respect to a Non-Serviced Mortgage Loan, the related intercreditor agreement by
and between the holder of the related A Note and the holder of the related B
Note relating to the relative rights of such holders of the respective A Note
and B Note, as the same may be further amended from time to time in accordance
with the terms thereof.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if any.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the Mortgage securing a
Non-Serviced Mortgage Loan and any other note secured by the related Mortgaged
Property.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means the
pooling and servicing agreement under which the related Non-Serviced Mortgage
Loan is being serviced.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if any.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if
any.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicers and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, any Managing Director or Director, the President,
or any Executive Vice President, any Senior Vice President, Vice President,
Second Vice President or Assistant Vice President and (z) in the case of the
Paying Agent, a certificate signed by a Responsible Officer, each with specific
responsibilities for the matters contemplated by this Agreement.
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"OPERATING ADVISER" shall mean the Person elected to serve as the
Operating Adviser pursuant to Section 9.37(a); provided, that, with respect to
an A/B Mortgage Loan, a holder of the related B Note, will, to the extent set
forth in the related Intercreditor Agreement, instead be entitled to the rights
and powers granted to the Operating Adviser under this Agreement to the extent
that such rights and powers relate to the related A/B Mortgage Loan (but only so
long as the holder of the related B Note is the directing holder or controlling
holder, as defined in the related Intercreditor Agreement).
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee and the Paying Agent, reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who is not in-house counsel to the party
required to deliver such opinion but who, in the good faith judgment of the
Trustee and the Paying Agent, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any such
opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of any REMIC Pool or status as a "grantor trust" under the Code of the
Excess Interest Grantor Trust.
"OPTION PURCHASE PRICE" has the meaning set forth in Section 9.36(b)
hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable,
which has been deposited into a commercial mortgage securitization trust, the
date under the related Other Companion Loan Pooling and Servicing Agreement that
the related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means any
pooling and servicing agreement relating to a Non-Serviced Companion Mortgage
Loan or a Serviced Companion Mortgage Loan that creates a commercial mortgage
securitization trust, as applicable.
"OTHER MASTER SERVICER" means any master servicer under an Other
Companion Loan Pooling and Servicing Agreement relating to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in Section 9.4(d)
hereof.
"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.
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"P&I ADVANCE" shall mean (other than with respect to a Serviced
Companion Mortgage Loan or a B Note) (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the 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 Mortgage Loan that is a Balloon
Mortgage Loan (including any REO Property as to which the related Mortgage Loan
provided for a Balloon Payment) as to which a Balloon Payment was due during or
prior to the related Collection Period but was delinquent, in whole or in part,
as of the related Determination Date, an amount equal to the excess, if any, of
the Assumed Scheduled Payment for such Balloon Mortgage Loan for the related
Collection Period, over any Late Collections received in respect of such Balloon
Payment during such Collection Period; and (iii) with respect to each REO
Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan related to such REO Property during the related
Collection Period, over remittances of REO Income to the applicable Master
Servicer by the Special Servicer, reduced by any amounts required to be paid as
taxes on such REO Income (including taxes imposed pursuant to Section 860G(c) of
the Code); provided, however, that the interest portion of any Scheduled Payment
or Assumed Scheduled Payment shall be advanced at a per annum rate equal to the
sum of the REMIC I Net Mortgage Rate, relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee and the Excess Servicing Fee; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the interest component of any P&I Advance with respect
to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an
amount equal to the product of (i) the amount of interest required to be
advanced without giving effect to this proviso and (ii) a fraction, the
numerator of which is the Principal Balance of such Mortgage Loan as of the
immediately preceding Determination Date less any Appraisal Reduction applicable
to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the portion of such Appraisal Reduction
allocable (based upon their respective Principal Balances) to such Non-Serviced
Mortgage Loan or Serviced Pari Passu Mortgage Loan under the related
Intercreditor Agreement or the related Loan Pair Intercreditor Agreement, or in
the case of an A/B Mortgage Loan, the portion of such Appraisal Reduction
allocable to the A Note pursuant to the definition of an "Appraisal Reduction")
and the denominator of which is the Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I Advances for any Mortgage Loans that have
been modified shall be calculated on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"P&I PARI PASSU LOANS" has the meaning set forth in Section 4.1A
hereof.
"PAR MASTER SERVICER" has the meaning set forth in the preamble
hereto.
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"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the related Mortgaged Property
generally, the portion thereof attributable to any Non-Serviced Mortgage Loan
shall be determined based on the outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan as set forth in the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement; provided, however, that the Pari Passu
Loan Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan set forth
on Schedule XII as to which such fee is calculated on a 30/360 basis shall be
(a) the related "Master Servicing Fee Rate" set forth in the Non-Serviced
Mortgage Loan Pooling and Servicing Agreement, multiplied by (b) 30 divided by
the actual number of days in the loan accrual period with respect to such loan.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, other than the Class 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, Class
P, Class Q and Class S Certificates, for the first Distribution Date, the rate
set forth in the Preliminary Statement hereto. For any Distribution Date
occurring thereafter (and with respect to the Class X, Class B, Class C, Class
E, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q and Class S, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) the Class A-1, Class X-0X, Xxxxx X-0X, Xxxxx X-0X,
Class A-AB, Class A-4A and Class A-4B Certificates, the fixed rate corresponding
to such Class set forth in the Preliminary Statement hereto, (iv) the Class A-3
Certificates shall equal the lesser of (A) 5.392% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class A-J
Certificates shall equal the lesser of (A) 5.073% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (vi) the Class B
Certificates shall equal the lesser of (A) 5.152% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (vii) the Class C
Certificates shall equal the lesser of (A) 5.172% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class D
Certificates shall equal the lesser of
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(A) 5.202% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (ix) the Class E Certificates shall equal the lesser of
(A) 5.231% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (x) the Class F Certificates shall equal the lesser of
(A) 5.271% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (xi) the Class G Certificates shall equal the lesser of
(A) 5.379% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date, (xii) the Class H, Class J and Class K Certificates
shall equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (xiii) the Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates shall equal the lesser of (A) 4.756% per annum and (B) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xiv) the
Class X-1 Certificates shall equal the per annum rate equal to the weighted
average of the Class X-1 Strip Rates for the respective Class X-1 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), and (xv) 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). For purposes of
calculating the interest to be paid to Certificateholders on any Distribution
Date in connection with the reimbursement of Realized Losses, the Pass-Through
Rate in respect of the Class A-2 Certificates shall be deemed to be the weighted
average of the Pass-Through Rates of the Class A-2A Certificates and the Class
A-2B Certificates and in respect of the Class A-4 Certificates shall be deemed
to be the weighted average of the Pass-Through Rates of the Class A-4A
Certificates and the Class A-4B Certificates, the relevant weighting to be on
the basis of the respective Certificate Balances of such Classes of Certificates
immediately prior to such Distribution Date.
"PAYING AGENT" means Xxxxx Fargo Bank, National Association and any
successor or assign, as provided herein. The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent shall be
distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to the
Paying Agent in an amount agreed to between the Trustee and the Paying Agent
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Class T Certificates and 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 and
the Class T 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).
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"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated or its
respective 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 XIII.
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R. Section 2510.3-101.
"PMCF" has the meaning set forth in the Preliminary Statement hereto.
"PMCF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) is made after the Due Date for
such Mortgage Loan through and including the last day of the Collection Period,
the amount of interest that accrues on the amount of such Principal Prepayment
from such Due Date to the date such payment was made, plus (if made) any payment
by the Mortgagor of interest that would have accrued to the next succeeding Due
Date (net of the Master Servicing Fee, the Excess Servicing Fees, the Special
Servicing Fee, the Trustee Fee and the servicing fee and trustee fee payable in
connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced
Mortgage Loan)), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period
(including any shortfall resulting from such a payment during the grace period
relating to such Due Date). The amount
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of any Prepayment Interest Shortfall shall equal the excess of (A) the aggregate
amount of interest which would have accrued on the Scheduled Principal Balance
of such Mortgage Loan if the Mortgage Loan had paid on its Due Date and such
Principal Prepayment or Balloon Payment had not been made (net of the Master
Servicing Fee, the Excess Servicing Fees, the Special Servicing Fee, the Trustee
Fee and the servicing fee payable in connection with any Non-Serviced Mortgage
Loan (in the case of any Non-Serviced Mortgage Loan)) over (B) the aggregate
interest that did so accrue through the date such payment was made (net of such
fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the principal balance of
such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into account all
principal and interest payments made or due on or prior to the Cut-Off Date
(assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan or B Note
with a Due Date in August 2005 that is not August 1, 2005, that principal and
interest payments for such month were paid on August 1, 2005), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal with respect to such Mortgage Loan, Serviced Companion Mortgage Loan,
B Note 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 during any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-AB, Class A-3, 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, Class P, Class Q and Class
S 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:
(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
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Mortgage Loans (but not in respect of any Serviced Companion Mortgage Loan or B
Note or its successor REO Mortgage Loan) 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 but not in respect of any Serviced Companion
Mortgage Loan or B Note or its respective successor REO Mortgage Loan) and any
other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the applicable Master Servicer as recoveries of
principal thereof in accordance with this Agreement;
(B) the aggregate amount of any collections received on or in respect
of the Mortgage Loans during the related Collection Period that, in each case,
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 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 (or
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); 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 Special
Servicer, the Trustee and the Fiscal Agent from amounts in the applicable
Collection Account allocable to principal received or advanced with respect to
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 applicable Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent during the
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related Collection Period from amounts in the Collection Account allocable to
principal received or advanced with respect to 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, a Serviced Companion Mortgage Loan
or a B Note which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum
dated July 29, 2005, pursuant to which the Class X-1, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S and Class
T Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by a Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum (without
duplication) 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 and any related Serviced Companion Mortgage Loan, B Note or REO Property
(including any Servicing Advances and Advance Interest thereon (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 any related Serviced
Companion Mortgage Loan or B Note) related to such Mortgage Loan and any related
Serviced Companion Mortgage Loan or B Note, the amount of any Servicing Advances
(and Advance Interest thereon) that were reimbursed from principal collections
on the Mortgage Pool pursuant to Section 5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are reimbursable or payable to the
applicable Master Servicer, the Special Servicer, the Paying Agent, the Trustee,
the Fiscal Agent, any Non-Serviced Mortgage Loan Master Servicer or any
Non-Serviced Mortgage Loan Special Servicer, 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 applicable Master Servicer, the Special
Servicer, the Depositor, the Paying Agent, or the Trustee in respect of the
Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the applicable
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an
REO Mortgage Loan by
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a Seller pursuant to Section 2.3 or (ii) the purchase of the Mortgage Loans and
REO Properties by the Depositor, such Master Servicer, the Special Servicer or
the holders of the Class R-I Certificates pursuant to Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch if rated by Fitch or if not rated by Fitch, then Fitch has issued a
Rating Agency Confirmation and "A" by S&P if rated by S&P or if not rated by
S&P, then S&P has issued a Rating Agency Confirmation, and (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 Fitch if
rated by Fitch or if not rated by Fitch, then as to which Fitch has issued a
Rating Agency Confirmation, "A" by S&P if rated by S&P or if not rated by S&P,
then S&P has issued a Rating Agency Confirmation and "A(low)" by DBRS, or if not
rated by DBRS, then either an equivalent rating (such as those listed above for
Fitch and S&P) by at least two nationally recognized statistical rating
organizations or DBRS has issued a Rating Agency Confirmation, or (iii) in
either case, a company not satisfying clause (i) or (ii) but with respect to
which a Rating Agency Confirmation is obtained. "Qualified Insurer" shall also
mean any entity that satisfies all of the criteria, other than the ratings
criteria, set forth in one of the foregoing clauses and whose obligations under
the related 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 a Certificate Account, and shall be treated as a
Principal Prepayment hereunder (other than for purposes of calculating
Compensating Interest); (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan;
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(iii) has a remaining term to stated maturity not greater than, and not more
than two years less than, that of the Deleted Mortgage Loan; (iv) has an
original Loan-to-Value Ratio not higher than that of the Deleted Mortgage Loan
and a current Loan-to-Value Ratio (equal to the outstanding principal balance on
the date of substitution divided by its current Appraised Value) not higher than
the current Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current
Debt Service Coverage Ratio equal to or greater than the current Debt Service
Coverage Ratio of the Deleted Mortgage Loan; (v) will comply with all of the
representations and warranties relating to Mortgage Loans set forth herein, as
of the date of substitution; (vi) has a Phase I Environmental Report relating to
the related Mortgaged Property in its Mortgage Files and such Phase I
Environmental Report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard, raise material issues
that have not been adequately addressed; (vii) has an engineering report
relating to the related Mortgaged Property in its Mortgage Files and such
engineering report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard raise material issues
that have not been adequately addressed; and (viii) as to which the Trustee and
the Paying Agent have received an Opinion of Counsel, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan
may have a Maturity Date after the date three years prior to the Rated Final
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser may not be unreasonably withheld). In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A)
the Principal Balance referred to in clause (i) above shall be determined on the
basis of aggregate Principal Balances and (B) the rates referred to in clause
(ii) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis (provided, that the REMIC
I Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less
than the highest Pass-Through Rate of any outstanding Class of Certificates that
is not subject to a cap based on the Weighted Average REMIC I Net Mortgage
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 Special Servicer, the Trustee
and the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in August 2042.
"RATING AGENCIES" means DBRS, Fitch 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
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such Rating Agency to any Class of Certificates then rated by such Rating
Agency, provided that with respect to any matter affecting any Serviced
Companion Mortgage Loan, such confirmation shall also refer to the nationally
recognized statistical rating organizations then rating the securities
representing an interest in such loan and such rating organizations' respective
ratings of such securities.
"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 treated as Realized Interest
Losses pursuant to clause (iv) 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 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 (plus the
amount of any Unliquidated Advance with respect to such Mortgage Loan) 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, any such Expense Loss (other than Expense Losses resulting from
the payment of Special Servicing Fees) to the extent that such Expense Losses do
not exceed amounts collected in respect of the Mortgage Loans that were
identified as allocable to principal in the Collection Period in which such
Expense Losses were incurred, and any such excess shall be treated as a Realized
Interest Loss and (v) any Unliquidated Advance that is determined by the
applicable Master Servicer or the Special Servicer to be a Nonrecoverable
Advance.
"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, a Serviced Companion Mortgage Loan, a B Note 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).
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"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, Serviced Companion Mortgage Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute a
Rehabilitated Mortgage Loan unless its related B Note would constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a Rehabilitated
Mortgage Loan unless its related A Note also would constitute a Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMAINING CERTIFICATEHOLDER" means any Holder (or Holders if they act
in unanimity) holding 100% of the then outstanding Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S and Class X Certificates or an
assignment of the voting rights thereof; provided, however, that the Certificate
Balances of the Class A Senior, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H and Class J Certificates have been reduced to zero.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
with respect thereto as shall from time to time be held in a Certificate
Account, the Reserve Account, the Distribution Account (other than the portion
thereof constituting the Excess Interest Sub-account) and the Interest Reserve
Account, the Insurance Policies other than the interests of the holder of any
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Serviced Companion Mortgage Loan or B Note therein) and any REO Properties or
beneficial interests therein (other than the interests of the holder of any
Serviced Companion Mortgage Loan or B Note therein) for which a REMIC election
shall be made pursuant to Section 12.1(a) hereof. Excess Interest on the
Mortgage Loans and the Excess Interest Sub-account shall constitute assets of
the Trust but shall not be a part of any REMIC Pool. The Non-Serviced Companion
Mortgage Loans and any amounts payable thereon shall not constitute assets of
the Trust or any REMIC Pool formed hereunder. No B Note or any amounts payable
thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder. No Serviced Companion Mortgage Loan or any amounts payable thereon
shall constitute an asset of the Trust or any REMIC Pool formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal to (a) with
respect to any Mortgage Loan that accrues interest on the basis of a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account any increase therein after the
Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above, and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan, provided that for purposes of this clause (b), (i) the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Account and (ii) the REMIC I Net Mortgage Rate for the loan
accrual period relating to the Due Date in March (commencing in 2006) shall be
determined taking into account the addition of any amounts withdrawn from the
Interest Reserve Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests and related amounts in the Distribution Account for which a
REMIC election shall be made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
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"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 an initial Certificate Balance equal to $121,200,000, 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 an initial Certificate Balance equal to $106,156,000, 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 an initial Certificate Balance equal to $1,498,000, 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 equal to $318,834,000, 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 equal to $317,474,000, 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 equal to $304,236,000, 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 equal to $290,440,000, 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 equal to $277,376,000, 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 equal to $164,140,000, 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
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Certificate Balance equal to $156,293,000, 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 equal to $148,905,000, 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 equal to $141,910,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $294,875,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $188,836,,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $87,103,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-2B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-AB" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-AB Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-3 Certificates, 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 equal to $1,060,595,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
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"REMIC II REGULAR INTEREST A-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 equal to $1,031,791,000, 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 equal to $952,944,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A-4" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $845,317,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A-5" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $772,866,000, 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 a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-4B Certificates, 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 a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $27,541,000, 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
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Balance equal to $13,330,000, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $24,098,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $15,904,000, 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 equal to $27,541,000, 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 equal to $24,919,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $34,426,000 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 equal to $5,871,000 and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $30,983,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $17,951,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST K-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $41,311,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $37,436,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, 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 a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST S" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class S Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-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 X-0X-
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0, XXXXX 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-2A-1, REMIC II Regular Interest A-2A-2, REMIC II Regular Interest A-2A-3,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-AB, REMIC II Regular Interest A-3, 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-4A-4, REMIC II Regular Interest A-4A-5, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-J, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest E-1, REMIC II Regular Interest E-2, 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-1, REMIC II Regular Interest J-2, REMIC II Regular Interest
K-1, REMIC II Regular Interest K-2, 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, REMIC II Regular Interest Q and REMIC II Regular
Interest S.
"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 shall be 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-2A Certificates, Class A-2B
Certificates, Class A-AB Certificates, Class A-3 Certificates, Class A-4A
Certificates, Class A-4B Certificates, Class A-J Certificates, Class X-1
Certificates, Class X-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates, Class P Certificates, Class Q Certificates and Class S
Certificates.
"REMIC POOL" means each of REMIC I, REMIC II and REMIC III and the
three segregated pools of assets designated as a REMIC pursuant to Section
12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and 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 Senior,
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, Class P,
Class Q and Class S Certificates.
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"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the applicable Master Servicer
or the Special Servicer of Liquidation Proceeds and other payments and
recoveries (including proceeds of a final sale) from the sale or other
disposition of REO Property.
"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan or Loan Pair for any Collection Period, all
income received in connection with such REO Property during such period less any
operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid during such period or, with respect
to an REO Property that had been security for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts described above received with respect to such REO
Property and allocable to the related A Note or Serviced Pari Passu Mortgage
Loan, as applicable, pursuant to the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable to the holder of the related Serviced
Pari Passu Mortgage or the related A Note, as applicable, shall be included in
REO Income.
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing
an A/B Mortgage Loan has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the second Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"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.
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"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair or B Note
as to which an Appraisal Event has occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note 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.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Global Securities and
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust officer
or persons performing similar roles on behalf of the Trustee, Fiscal Agent or
Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA, provided that such change need not be implemented
prior to the date that is three (3) months following the adoption of such change
by the CMSA) prepared by the Servicer Report Administrator (combining reports
prepared by each Master Servicer and the Special Servicer (as set forth in
Section 9.32 of this Agreement with respect to Specially Serviced Mortgage Loans
and REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA Special Servicer
Loan File and (vii) a realized loss report substantially in the form included in
Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class S, Class Q,
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 and Class A Senior Certificates, on a pro rata basis, as described herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
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"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, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan,
for purposes of performing calculations with respect to any Distribution Date,
the Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan.
"SELLER" means MSMC, PMCF, Xxxxx Fargo or SunTrust, as the case may
be.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means the FRIS Chkn Companion Loan
or the U-Haul Portfolio Companion Loan, as the case may be. Any Serviced
Companion Mortgage Loan is not a "Mortgage Loan".
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the applicable Certificate Account (but which are
not included in the Trust) created and maintained by the applicable Master
Servicer pursuant to Section 5.1(c) on behalf of the holder of the related
Serviced Companion Mortgage Loan. Any such sub-account(s) shall be maintained as
a sub-account of an Eligible Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a Serviced
Pari Passu Mortgage Loan and its related Serviced Companion Mortgage Loan
secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means the FRIS Chkn Pari Passu
Loan or the U-Haul Portfolio Pari Passu Loan, as the case may be. Any Serviced
Pari Passu Mortgage Loan is a "Mortgage Loan".
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by a Master
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Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify a Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent as the case
may be (subject to standard exclusions), for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of a Master Servicer's, the Special Servicer's, the Trustee's, the
Fiscal Agent's or the Paying Agent's, as the case may be, directors, officers or
employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of "Mortgage File" relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICER REPORT ADMINISTRATOR" means the PAR Master Servicer (without
regard to the final sentence of the definition of "Master Servicer") or any
successor thereto appointed as provided herein.
"SERVICER REPORT ADMINISTRATOR FEE" means for each calendar month, as
to each Mortgage Loan (including REO Mortgage Loans), the portion of the
Servicer Report Administrator 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.
"SERVICER REPORT ADMINISTRATOR FEE RATE" means 0.0005% per annum.
"SERVICING ADVANCE" means any cost or expense of the applicable Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, designated as a Servicing Advance pursuant to this Agreement and any other
costs and expenses incurred by the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, to protect and
preserve the security for such Mortgage Loan and/or (if applicable) the related
Serviced Companion Mortgage Loan or B Note.
"SERVICING OFFICER" means, any officer or employee of the applicable
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note whose name and specimen signature appear on a list of servicing officers or
employees furnished to the Trustee by the applicable
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Master Servicer and signed by an officer of the applicable Master Servicer, as
such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to each of the Master
Servicers or the Special Servicer, as the case may be, to service and administer
the Mortgage Loans (and any Serviced Companion Mortgage Loan and B Note but not
any Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole (as determined by
the applicable Master Servicer or the Special Servicer, as the case may be, in
its good faith and reasonable judgment), in accordance with applicable law, the
terms of this Agreement, the terms of the respective Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note (and, in the case of any Loan
Pair or any A Note and B Note, the related Loan Pair Intercreditor Agreement or
the related Intercreditor Agreement, as applicable) and, to the extent
consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties (in the case of the applicable Master Servicer, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage loan servicers servicing similar Mortgage
Loans) or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans, any Serviced Companion Mortgage
Loan and any B Note or, if a Mortgage Loan, any Serviced Companion Mortgage Loan
or any B Note comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery of principal and interest on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any A/B Mortgage
Loan and its related B Note or any Loan Pair, the maximization of recovery on
such A/B Mortgage Loan or Loan Pair, as applicable, to the Certificateholders
and the holder of the related B Note or Serviced Companion Mortgage Loan, as
applicable, all taken as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at a rate, taking into account the related
REMIC I Net Mortgage Rate, in the case of the Mortgage Loans (other than any A
Note or Serviced Pari Passu Mortgage Loan) or the weighted average of the
mortgage rates on the related A Note and B Note and the risk of collection, in
the case of any A/B Mortgage Loan, and on the related Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan in the case of any Loan
Pair); and without regard to: (I) any other relationship that the applicable
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with the related Mortgagor; (II) the ownership of any
Certificate or any interest in any Non-Serviced Companion Mortgage Loan,
Serviced Companion Mortgage Loan, B Note or any mezzanine loan related to a
Mortgage Loan by the applicable Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof; (III) the applicable Master Servicer's
obligation to make Advances; (IV) the right of the applicable Master Servicer
(or any Affiliate thereof) or the Special Servicer (or
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any Affiliate thereof), as the case may be, to receive reimbursement of costs,
or the sufficiency of any compensation payable to it, hereunder or with respect
to any particular transaction and (V) any obligation of the applicable Master
Servicer (or any Affiliate thereof) to repurchase any Mortgage Loan from the
Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which a Balloon Payment
is past due; provided, however, that pursuant to the first sentence of Section
8.18(a)(ii), the applicable Master Servicer shall have the right (without any
Person's consent) to extend the Maturity Date of any Balloon Mortgage Loan for
not more than 60 days beyond the original Maturity Date if the Borrower has
obtained a written commitment for refinancing of the Mortgage Loan or purchase
of the related Mortgaged Property and provided, further, that (a) the applicable
Master Servicer (subject to the penultimate paragraph of Section 9.39 of this
Agreement and with the consent of the Special Servicer, after the Special
Servicer's consultation with the Operating Adviser) and the Special Servicer, in
the circumstances set forth in the third and fifth sentences of Section
8.18(a)(ii), shall have the authority to otherwise extend the maturity date of
any Balloon Mortgage Loan and, in the case of such an extension, a Servicing
Transfer Event shall not occur with respect to such Balloon Mortgage Loan and
(b) if the Mortgagor makes the Assumed Scheduled Payments with respect to such
Balloon Mortgage Loan and the applicable Master Servicer or the Special
Servicer, as applicable, is considering an extension pursuant to Section
8.18(a)(ii), a Servicing Transfer Event shall not occur as a result of such
default unless and until such Balloon Payment remains past due for a period of
30 days and such Balloon Mortgage Loan has not been extended pursuant to Section
8.18(a)(ii); (ii) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which any other payment of
principal and/or interest is more than 60 days past due or has not been made on
or before the second Due Date following the Due Date such payment was due; (iii)
any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note 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 or
unstayed for a period of 30 days; (iv) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the applicable Master Servicer shall have received notice of the
foreclosure or proposed foreclosure of any other lien on the Mortgaged Property;
(v) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note as to which the applicable Master Servicer or
the Special Servicer has knowledge of a default (other than a failure by the
related Mortgagor to pay principal or interest) which in the good faith
reasonable judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer) materially and adversely affects the interests of the
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
or B Note and which has occurred and remains unremedied for the applicable grace
period specified in such Mortgage Loan (or, if no grace period is specified, 60
days); (vi) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which the Mortgagor admits in
writing its
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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; (vii) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer), (a) (other than with respect to any A/B Mortgage Loan) a
payment default is imminent or is likely to occur within 60 days, or (b) any
other default is imminent or is likely to occur within 60 days and such default,
in the judgment of the applicable Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer), is reasonably likely to materially and adversely affect the
interests of the Certificateholders or the holder of any related Serviced
Companion Mortgage Loan or B Note (as the case may be); and (viii) with respect
to any A/B Mortgage Loan, if the holder of the B Note chooses not to cure a
monetary default that is permitted to be cured under the related Intercreditor
Agreement, the Business Day following the expiration of the Cure Period (as
defined in the related Intercreditor Agreement) that commences one month after
such monetary default; provided, however, that (1) if the holder of the B Note
exercised its right to cure a monetary default and a monetary default occurs in
the following month due to the holder of the B Note's failure to cure, then
servicing of such Mortgage Loan shall be transferred to the Special Servicer on
the Business Day following the expiration of the Cure Period (as defined in the
related Intercreditor Agreement) of the holder of the B Note if the holder of
the B Note does not cure the current monetary default or (2) if the holder of
the B Note has exercised its right to cure three consecutive monetary defaults
and a monetary default occurs in the following month, then servicing of such
Mortgage Loan shall be transferred to the Special Servicer at the expiration of
the Mortgagor's grace period for the current monetary default. If the event is
based on a determination by the Special Servicer, then the Servicing Transfer
Event shall be subject to the applicable Master Servicer's receipt of notice of
such determination and the consent of the Operating Adviser to such
determination (subject to the penultimate paragraph of Section 9.39). If a
Servicing Transfer Event occurs with respect to an A Note, it shall be deemed to
have occurred also with respect to its related B Note. If a Servicing Transfer
Event occurs with respect to a B Note, it shall be deemed to have occurred also
with respect to its related A Note. However, if a Servicing Transfer Event has
not occurred with respect to an A Note solely due to the holder of the related B
Note exercising its cure rights under the related Intercreditor Agreement, then
a Servicing Transfer Event will not occur with respect to such B Note. If a
Servicing Transfer Event occurs with respect to any Serviced Pari Passu Mortgage
Loan, it shall be deemed to have occurred also with respect to the related
Serviced Companion Mortgage Loan. If a Servicing Transfer Event occurs with
respect to any Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also with respect to the related Serviced Pari Passu Mortgage Loan. The
parties hereto understand that under the applicable Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, if a servicing transfer event occurs with
respect to any Non-Serviced Companion Mortgage Loan, it shall be deemed to have
occurred also with respect to the related Non-Serviced Mortgage Loan, but shall
not be a Specially Serviced Mortgage Loan pursuant to this Agreement.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
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"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.
"SPECIAL SERVICER" means CWCapital Asset Management LLC, or any
successor Special Servicer as herein provided, including without limitation, any
successor Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to the Special Servicer pursuant to the
terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and each Master Servicer by the Special Servicer
signed by an officer of the Special Servicer, as such list may from time to time
be amended.
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"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note with respect to which the applicable
Master Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note as reasonably requested by the Special Servicer to
enable it to assume its duties with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note. A Specially Serviced Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan from and after the date on which
the Special Servicer notifies the applicable Master Servicer, the Operating
Adviser, the Paying Agent and the Trustee, in accordance with Section 8.1(b),
that such Mortgage Loan (and the related B Note in the case of an A/B Mortgage
Loan, and the related Serviced Companion Mortgage Loan in the case of a Loan
Pair) has become a Rehabilitated Mortgage Loan (and, in the case of an A Note
(or B Note) that is or was a Specially Serviced Mortgage Loan, its related B
Note (or A Note) has also become a Rehabilitated Mortgage Loan and, in the case
of a Serviced Pari Passu Mortgage Loan (or Serviced Companion Mortgage Loan)
that is or was a Specially Serviced Mortgage Loan, its related Serviced
Companion Mortgage Loan (or Serviced Pari Passu Mortgage Loan) has also become a
Rehabilitated Mortgage Loan), with respect to such Servicing Transfer Event,
unless and until the applicable Master Servicer notifies the Special Servicer,
the Paying Agent and the Trustee, in accordance with Section 8.1(b) that another
Servicing Transfer Event with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"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, Class P, Class Q and Class S Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"SUNTRUST" has the meaning set forth in the Preliminary Statement
hereto.
"SUNTRUST LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
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"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of the REMIC I (including the Mortgage Loans
other than any Excess Interest), such amounts related thereto as shall from time
to time be held in a Certificate Account, the Distribution Account, the Reserve
Account, the Interest Reserve Account, the Insurance Policies, any REO
Properties or beneficial interests therein and other items referred to in
Section 2.1(a) hereof), REMIC II, REMIC III, and such amounts as shall from time
to time be held in the Excess Interest Sub-account and any Excess Interest on
the Mortgage Loans. The Trust shall not include any Non-Serviced Companion
Mortgage Loan, any B Note, any interest of the holders of a B Note, any A/B Loan
Custodial Account or any Serviced Companion Mortgage Loan, any interest of the
holders of a Serviced Companion Mortgage Loan or any Serviced Companion Mortgage
Loan Custodial Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"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; provided that a portion of the Trustee Fee agreed upon
between the Trustee and the Paying Agent shall be applied to pay the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.00125% per annum (which includes the Paying
Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Trustee Mortgage File" is used to refer to documents actually received by
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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.
"U-HAUL PORTFOLIO COMPANION LOAN" means, the notes secured by the
U-Haul Portfolio Pari Passu Mortgage on a pari passu basis with the U-Haul
Portfolio Pari Passu Loan and which is not included in the Trust. The U-Haul
Portfolio Companion Loan is not a "Mortgage Loan."
"U-HAUL PORTFOLIO PARI PASSU LOAN" means, the Mortgage Loan designated
as Mortgage Loan Nos. 3-163 on the Mortgage Loan Schedule and which is secured
on a pari passu basis with the U-HaulPortfolio Companion Loan pursuant to the
U-Haul Portfolio Pari Passu Mortgage. The U-Haul Portfolio Pari Passu Loan is a
"Mortgage Loan."
"U-HAUL PORTFOLIO PARI PASSU MORTGAGE" means, the Mortgage securing
the U-Haul Portfolio Companion Loan and the U-Haul Portfolio Pari Passu Loan.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated, Banc of
America Securities LLC, Greenwich Capital Markets, Inc and SunTrust Capital
Markets, Inc., or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (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.
"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 Fund 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 (or in the case of (i) Classes A-2A and A-2B and (ii) Classes A-4A and
A-4B, such classes collectively or individually as the context may require) of
Interests or Certificates (other than the Residual Certificates), the portion of
Distributable Certificate Interest for such Class remaining unpaid as of the
close of business on the preceding Distribution Date, plus one month's interest
thereon at the applicable Pass-Through Rate.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA, provided that such change need not be implemented
prior to the date that is three (3) months following the adoption of such change
by the CMSA) prepared by the Servicer Report Administrator (combining reports in
such forms prepared by each Master Servicer and the Special Servicer (with
respect to Specially Serviced Mortgaged Loans and REO Properties)): (a)
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the following electronic files; (i) a Loan Setup File (with respect to the
initial Distribution Date only); and (ii) a Loan Periodic Update File; and (b)
the following supplemental reports: (i) a Delinquent Loan Status Report, (ii) an
Historical Loan Modification Report, (iii) an Historical Liquidation Report,
(iv) an REO Status Report, (v) a CMSA Loan Level Reserve/LOC Report and (vi) an
Advance Recovery Report.
"USAP" shall have the meaning set forth in Section 8.13.
"XXXXX FARGO" has the meaning set forth in the Preliminary Statement
hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement III and shown on
Schedule III hereto.
"XXXXX FARGO MASTER SERVICER" has the meaning set forth in the
preamble hereto.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"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 (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y) the amount of
each collection of interest (other than default interest and any Excess
Interest) and principal received (including any Condemnation Proceeds received
and applied as a collection of such interest and principal) on such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan, Serviced Companion Mortgage Loan or B Note shall be made
based upon current information as to the terms of such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note and reports of payments received from the
applicable Master Servicer on such Mortgage Loan, Serviced Companion Mortgage
Loan and B Note and payments to be made to the Paying Agent as supplied to the
Paying Agent by the applicable 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,
Serviced Companion Mortgage Loan or B Note documents (or the related
Intercreditor Agreement or related Loan Pair Intercreditor Agreement, as
applicable), or as otherwise provided
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in the definition of Liquidation Realized Loss, any amounts (other than escrow
and reserve deposits and reimbursements of lender advances and expenses
(excluding, for the avoidance of doubt, any Liquidation Fee or Work-Out Fee)
received in respect of a Mortgage Loan, a Serviced Companion Mortgage Loan or a
B Note as to which a default has occurred and is continuing shall be applied
first to overdue interest due with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note at the Mortgage Rate thereof, next to current
interest due with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note at the Mortgage Rate thereof, next to the reduction of the
Principal Balance of such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note to zero if such Mortgage Loan, Serviced Companion Mortgage Loan or B Note
has been accelerated and in respect of any scheduled payments of principal then
due to the extent that such Mortgage Loan, Serviced Companion Mortgage Loan or B
Note has not yet been accelerated, next to any default interest and other
amounts due on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note
and finally to Late Fees due with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note. The foregoing allocations are intended to
govern loan level allocations but shall not govern allocations of such amounts
at the trust level for the purpose of determining Principal Distribution Amounts
or Distributable Certificate Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(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.
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(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this
Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither of the Master Servicers nor the Special Servicer shall
take any enforcement action with respect to the payment of Excess Interest
unless the taking of such action is consistent with the Servicing Standard and
all other amounts due under such Mortgage Loan have been paid, and, in the good
faith and reasonable judgment of the applicable Master Servicer and the Special
Servicer, as the case may be, the Liquidation Proceeds expected to be recovered
in connection with such enforcement action will cover the anticipated costs of
such enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan after its Anticipated Repayment Date,
the applicable Master Servicer or the Special Servicer, as the case may be,
shall be permitted, in its discretion, to waive in accordance with Section 8.18
and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the
related Maturity Date, the related Mortgagor has requested the right to prepay
the Mortgage Loan in full together with all payments required by the Mortgage
Loan in connection with such prepayment except for all or a portion of accrued
Excess Interest, provided that the applicable Master Servicer's or the Special
Servicer's determination to waive the right to such accrued Excess Interest is
in accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The applicable Master Servicer or the Special Servicer, as the case may
be, will have no liability to the Trust, the Certificateholders or any other
person so long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related Loan
Pair Intercreditor Agreement or the related Intercreditor Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no longer part of
the Trust Fund, the new holder of such Serviced Pari Passu Mortgage Loan or B
Note, as applicable, shall negotiate one or more new servicing agreements with
the applicable Master Servicer and the Special Servicer, provided that, prior to
entering into any such new servicing agreement, the new holder of such Serviced
Pari Passu Mortgage Loan or B Note, as applicable, shall obtain and provide to
the holder of the
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related Serviced Companion Mortgage Loan and/or B Note written confirmation from
each rating agency then rating any securitization relating to such Serviced
Companion Mortgage Loan and/or B Note providing that such new servicing
agreement will not result in the downgrade, qualification or withdrawal of its
then-current ratings of any securities issued in such securitization; provided,
that prior to such time the applicable Master Servicer and the Special Servicer
shall continue to service the related Loan Pair and/or A/B Mortgage Loan to the
extent provided in the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the applicable
Master Servicer and the Special Servicer under Article VIII and Article IX and
the obligation of the applicable Master Servicer to make Advances, insofar as
such rights, duties and obligations relate to any A/B Mortgage Loan (including
both the related A Note and the related B Note) or Loan Pair, shall terminate
upon the earliest to occur of the following with respect to such A/B Mortgage
Loan or Loan Pair, as the case may be: (i) any repurchase of or substitution for
the related A Note or Serviced Pari Passu Mortgage Loan by the applicable Seller
pursuant to Section 2.3, (ii) any purchase of the related A Note by the owner of
the related B Note pursuant to the terms of the related Intercreditor Agreement
and (iii) any payment in full of any and all amounts due (or deemed due) under
the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO
Mortgage Loan) (including amounts to which the holder of such A Note or Serviced
Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement
or related Loan Pair Intercreditor Agreement), as applicable; provided, however,
that this statement shall not limit (A) the duty of the applicable Master
Servicer or the Special Servicer to deliver or make available the reports
otherwise required of it hereunder with respect to the Collection Period in
which such event occurs or (B) the rights of the applicable Master Servicer or
the Special Servicer that may otherwise accrue or arise in connection with the
performance of its duties hereunder with respect to such A/B Mortgage Loan or
Loan Pair prior to the date on which such event occurs.
(c) In connection with any purchase described in clause (ii) of
subsection (b) or an event described in clause (iii) of subsection (b), the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to (in the case of a purchase under such clause (ii)) the related
purchaser (provided that the related purchaser shall have paid the full amount
of the applicable purchase price) or (in the case of such clause (iii)) to the
holder of the related Serviced Companion Mortgage Loan or B Note (if then still
outstanding), upon delivery to them of a receipt executed by such purchaser or
holder, all portions of the Mortgage File and other documents pertaining to such
Loan Pair or A/B Mortgage Loan, as applicable, possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to such purchaser or holder (or
the designee of such purchaser or holder) in the same manner, and pursuant to
appropriate forms of assignment, substantially similar to the manner and forms
pursuant to which documents were previously assigned to the Trustee by the
related Seller, but in any event, without recourse, representation or warranty;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the applicable Master Servicer of a Request for Release. The applicable
Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, convey to such purchaser or such holder any deposits then held in an
Escrow Account relating to the applicable A/B Mortgage Loan or Loan Pair. If a
Serviced Pari Passu Mortgage Loan and the related Serviced Companion Mortgage
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Loan or an A Note and the related B Note under the applicable Mortgage Loan are
then REO Mortgage Loans, then the Special Servicer shall, and is also hereby
authorized and empowered by the Trustee to, convey to such purchaser or such
holder, in each case, to the extent not needed to pay or reimburse the
applicable Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent in accordance with this Agreement, deposits then held in the REO Account
insofar as they relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of a Master Servicer, the Special Servicer, the Trustee, or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund or any
REMIC formed hereunder or any grantor trust or to any determination respecting
the amount, payment or avoidance of any tax under the REMIC Provisions or
provisions relating to the grantor trust or the actual payment of any REMIC tax
or expense or the grantor trust tax or expense with respect to any REMIC formed
hereunder, then such expense shall not be allocated to, deducted or reimbursed
from, or otherwise charged against the holder of any Serviced Companion Mortgage
Loan or B Note and such holder shall not suffer any adverse consequences as a
result of the payment of such expense.
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
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, a Certificate Account, the Reserve
Account and the Interest Reserve Account, (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, (iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any
Non-Serviced Mortgage Loan and (v) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III or the Excess Interest
Grantor Trust for the benefit of the Class T Certificates. 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. The transfer and assignment of any Non-Serviced
Mortgage Loan to the Trustee and the right to service such Mortgage Loans are
subject to the terms and conditions of the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan
Intercreditor Agreement, and the
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Trustee, by the execution and delivery of this Agreement, hereby agrees that
such Mortgage Loans remain subject to the terms of each Non-Serviced Mortgage
Loan Intercreditor Agreement and, with respect to each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan, each Loan Pair Intercreditor
Agreement.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan within the time period set forth therein.
None of the Trustee, the Fiscal Agent, the Paying Agent, any Custodian, any
Master Servicer or the Special Servicer shall be liable for any failure by any
Seller or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at the expense of such Seller as to
each of its respective Mortgage Loans, promptly (and in any event within 45 days
following the receipt thereof) cause to be submitted for recording or filing
(except with respect to any Mortgage that has been recorded in the name of MERS
or its designees), 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;" provided that if the related Mortgage and UCC financing
statements have been recorded in the name of MERS or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, each Seller has agreed in the applicable Mortgage Loan Purchase
Agreement to take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording or filing; provided
that in those instances where the public recording office retains the original
Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC
financing statements, the applicable Seller shall obtain therefrom a certified
copy of the recorded original. The applicable Seller shall forward copies
thereof to the Trustee, the applicable Master Servicer and the Special Servicer
and, if recorded in the name of MERS, shall deliver to the applicable Master
Servicer and the Special Servicer, within 45 days of the Closing Date, evidence
confirming that the Trustee is shown as the owner on the record of MERS. If any
such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, the applicable Seller shall, pursuant
to the applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to
be prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the applicable Seller shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate. After the applicable Seller has caused
the Trustee to be identified on the records of MERS as the owner of a Mortgage,
it shall be the sole responsibility of the related Master Servicer to ensure
that subsequent relevant events relating to the Mortgage (as, for
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example, assumptions and partial releases) are properly registered with MERS
throughout the term of the related Mortgage Loan for so long as the Mortgage
Loan is an asset of the Trust.
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 5 to
the related Mortgage Loan Purchase Agreement in favor of the Trustee, the
applicable Master Servicer and the Special Servicer to empower the Trustee and,
in the event of the failure or incapacity of the Trustee, the applicable Master
Servicer or the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in 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
applicable 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 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; provided, that the Trustee, the applicable Master
Servicer and the Special Servicer may use such power of attorney to the extent
reasonably necessary in connection with any assumption, modification or
defeasance of a Mortgage Loan. The Trustee shall submit such documents for
recording, at the related Seller's expense, after the periods set forth above;
provided, however, the Trustee shall not submit such assignments for recording
if the applicable Seller produces evidence that it has sent any such assignment
for recording and certifies that it is awaiting its return from the applicable
recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the applicable Master Servicer on its behalf, on or before the date
that is 45 days following the Closing Date and shall be held by the applicable
Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders. To the extent delivered to the applicable Master Servicer by
the related Seller, the Servicer Mortgage File, will include, to the extent
required to be (and actually) delivered to the applicable Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the Mortgage
Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates (as applicable), the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the Appraisal,
the environmental report, the engineering report, the asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies. Delivery
of any of the foregoing documents to a sub-servicer shall be deemed delivery to
the applicable Master Servicer and satisfy the Depositor's obligations under
this Section 2.1(d). None of the applicable Master
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Servicer or the Special Servicer shall have any liability for the absence of any
of the foregoing items from the Servicing Mortgage File if such item was not
delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations 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 PMCF Loans from PMCF, the Xxxxx Fargo Loans from Xxxxx Fargo and
the SunTrust Loans from SunTrust. The Depositor will deliver or cause to be
delivered the original Mortgage Notes (or lost note affidavits and indemnities
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 or cause to be delivered the original
Mortgage Notes (or lost note affidavits and indemnities with copies of the
related Mortgage Notes, as described in the definition of "Mortgage File")
relating to the PMCF 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 or cause to be delivered the original Mortgage Notes (or lost note
affidavits and indemnities with copies of the related Mortgage Notes, as
described in the definition of "Mortgage File") relating to the Xxxxx Fargo
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver or cause to be
delivered the original Mortgage Notes (or lost note affidavits and indemnities
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, PMCF, Xxxxx Fargo and SunTrust, as applicable, are required under the
Mortgage Loan Purchase Agreements to deliver or cause to be delivered
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the MSMC Loans
shall be deemed to have been transferred from MSMC to the Depositor, the PMCF
Loans shall be deemed to have been transferred from PMCF to the Depositor, the
Xxxxx Fargo Loans shall be deemed to have been transferred from Xxxxx Fargo 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, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present
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and future Certificateholders. To the extent that the contents of the Mortgage
File for any A Note relate to the corresponding B Note, the Trustee, or the
Custodian on the Trustee's behalf, will also hold such Mortgage File in trust
for the benefit of the holder of the related B Note; provided, that if a B Note
remains outstanding following payment in full of the amounts due under the
related A Notes, the Mortgage Loan documents relating to such A/B Mortgage Loan
(exclusive of any such documents related solely to the A Notes) shall be
assigned to the holder of the B Note or its designee. To the extent that the
contents of the Mortgage File for any Serviced Pari Passu Mortgage Loan relate
to the corresponding Serviced Companion Mortgage Loan, the Trustee, or the
Custodian, on the Trustee's behalf, will also hold such Mortgage File in trust
for the benefit of the holder of the related Serviced Companion Mortgage Loan.
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 applicable Master Servicer, the Special
Servicer, the Operating Adviser and the holder of any Serviced Companion
Mortgage Loan 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 shall be in electronic format (i) in the case of
the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions attached
thereto, to the effect that: (A) all documents pursuant to clause (i) of the
definition of "Mortgage File" are in its possession, (B) such documents have
been reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of
the definition of "Mortgage File", and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions attached thereto, to
the effect that: (A) (I) all documents pursuant to clauses (i), (ii), (iv), (v),
(vi), (viii), (x) and (xii) of the definition of "Mortgage File" required to be
included in the Mortgage File (to the extent required to be delivered pursuant
to this Agreement), and with respect to all documents specified in the other
clauses of the definition of "Mortgage File" to the extent known by a
Responsible Officer of the Trustee to be required pursuant to this Agreement,
are in its possession, and (II) for each Mortgage recorded in the name of MERS
or its designee, the Trustee is shown as the transferee of the related Mortgage
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS, (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. Notwithstanding the
foregoing, the delivery of a commitment to issue a Title Insurance Policy in
lieu of the delivery of the actual Title Insurance Policy shall not be
considered a Material Document Defect with respect to any Mortgage File if such
actual Title Insurance Policy is delivered to the Trustee or a Custodian on its
behalf not later than the 180th day following the Closing Date.
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
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
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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), each Master Servicer, the Special Servicer, the Operating
Adviser, the Paying Agent and the holder of any Serviced Companion Mortgage Loan
on or about the date that is 180 days after the Closing Date and then again
every 90 days thereafter (until the earliest date specified above). Upon
request, the Paying Agent, shall promptly forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders. Promptly, and in any event within two
Business Days, following any request therefor by the Depositor, a Master
Servicer, the Special Servicer, the Operating Adviser or the holder of any
Serviced Companion Mortgage Loan 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. Upon request, the applicable Master
Servicer shall provide to the Trustee the names and addresses of each holder of
a Serviced Companion Mortgage Loan of which the applicable Master Servicer has
received notice in accordance with this Agreement and/or the related Loan Pair
Intercreditor Agreement.
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The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreement, and, in
either case, either (i) such defect or breach 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, to the
Operating Adviser 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 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 then a Specially Serviced
Mortgage Loan and a Servicing Transfer Event has occurred as a result of a
monetary default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" and (y) the Material Document Defect was
identified in a certification delivered to the applicable 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.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from the Trust at the applicable Purchase Price in accordance with the related
Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
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commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at the related Seller's option, without recourse (other than the
representations and warranties made with respect thereto), replace such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material Document Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, the repurchase must occur
within 85 days from the date the related Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
related Seller was notified of the defect or (ii) two years from the Closing
Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the 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
the applicable 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 the applicable 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 the applicable Master Servicer shall deliver or cause to be
delivered such amended Mortgage Loan Schedule to the Trustee, the Paying Agent
and the Special Servicer. Upon such substitution, the Qualifying Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in all
respects. Upon receipt of the Trustee Mortgage File pertaining to any Qualifying
Substitute Mortgage Loans, the Trustee shall release the Trustee Mortgage File
relating to such Deleted Mortgage Loan to the related Seller, and the Trustee
(and the Depositor, if necessary) shall execute and deliver such instruments of
transfer or assignment in the form presented to it, in each case without
recourse, representation or warranty, as shall be necessary to vest title
(provided, however, if applicable, the applicable Master Servicer will take all
necessary action to register the transfer of ownership of the Mortgage related
to such Deleted Mortgage Loan on the records of MERS) (to the extent that such
title was transferred to the Trustee or the Depositor) in the related Seller or
its designee to any Deleted Mortgage Loan (including any property acquired in
respect thereof or any insurance policy proceeds relating thereto) substituted
for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and
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cross-defaulted with one or more other Mortgage Loans ("Crossed Mortgage Loans")
and (z) the applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such Crossed
Mortgage Loans (without regard to this paragraph), then the applicable document
defect or breach (as the case may be) shall be deemed to constitute a Material
Document Defect or Material Breach (as the case may be) as to each such Crossed
Mortgage Loan for purposes of the above provisions, and the related Seller shall
be obligated to repurchase or replace each such Crossed Mortgage Loan in
accordance with the provisions above unless, in the case of such breach or
document defect, the Seller (A) provides a Nondisqualification Opinion to the
Trustee at the expense of the Seller and (B) both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (i) the
Debt Service Coverage Ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x below the
debt service coverage ratio for all such other Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
and (B) the debt service coverage ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for
all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the greater of (A) the loan-to-value ratio, expressed as a whole number
(taken to one decimal place), for all such Crossed Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
plus 10% and (B) the loan-to-value ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)), at the time of repurchase or replacement. The
determination of the 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 the applicable Master Servicer, an Appraisal of
any or all of the related Mortgaged Properties for purposes of determining
whether the condition set forth in clause (ii) above has been satisfied, in each
case at the expense of the related Seller if the scope and cost of the Appraisal
is approved by the related Seller (such approval not to be unreasonably
withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any Crossed Mortgage Loan, the applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to
forbear from enforcing any remedies against the other's Primary Collateral but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing Mortgage Loans still held by the Trustee, so long as
such exercise does not impair the ability of the other party to exercise its
remedies against its Primary Collateral. If the exercise of remedies by one
party would materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the Mortgage Loan or
Mortgage Loans held by such party, then both parties have agreed to forbear from
exercising such remedies until the loan documents evidencing and securing the
relevant Mortgage Loans can be modified in a manner that complies with the
applicable Mortgage Loan Purchase Agreement to remove the threat of material
impairment as a result of the exercise of remedies.
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Any reserve or other cash collateral or letters of credit securing the Crossed
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule VIII hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof)
that appears to be regular on its face, unless there is included in the Mortgage
File a certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; (c) the absence from the Mortgage File of the item called
for by paragraph (viii) of the definition of "Mortgage File" (or with respect to
any Non-Serviced Mortgage Loan, a copy thereof). If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a), the
applicable Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies, the parties
hereto and, to the extent any Material Document Defect relates to a Serviced
Pari Passu Mortgage Loan, the holder of the related Serviced Companion Mortgage
Loan, and making demand upon the related Seller for the cure of the document
defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
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Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will comprise) a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the amount of such offer. Notwithstanding
anything to the contrary contained herein or in the related Mortgage Loan
Purchase Agreement, the right of any Option Holder to purchase such Mortgage
Loan shall be subject and subordinate to the Seller's right to purchase such
Mortgage Loan as described in the immediately preceding sentence. The related
Seller shall have five (5) Business Days to notify the Trustee or the Special
Servicer, as applicable, of its intent to so purchase the Mortgage Loan or
related REO Property from the date that it was notified of such intention to
exercise such Option or of such offer. The Special Servicer shall be obligated
to provide the related Seller with any appraisal or other third party reports
relating to the Mortgaged Property within its possession to enable the related
Seller to evaluate the related Mortgage Loan or REO Property. Any sale of the
related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the
related REO Property, to a Person other than the related Seller shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the related Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the related Seller to or for the benefit of such
Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the applicable Master Servicer shall notify the related Seller of
the discovery of the Material Document Defect or Material Breach and the related
Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction issues
a final order after the expiration of any applicable appeal period that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan (a "Final Judicial Determination") or the related Seller
otherwise accepts liability, then, 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.
In connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 2.3, the Special Servicer shall not
receive a Liquidation Fee in connection with such sale or other liquidation
until a final determination has been made, as set forth in the preceding
paragraph, as to whether the Seller is or was obligated to repurchase such
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Mortgage Loan or REO Property. Upon such determination, the Special Servicer
shall be entitled to collect a Liquidation Fee (i) with respect to a
determination that the Seller is or was obligated to repurchase, based upon the
full Purchase Price of the related Mortgage Loan, including all related expenses
up to the date the remainder of such Purchase Price is actually paid, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that the Seller is not or was not obligated to repurchase (or the Trust decides
that it will no longer pursue a claim against the Seller for repurchase), based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan, with such amount to be paid from amounts in the Collection
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
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 a Certificate Account in the month of substitution,
without any reimbursement thereof. In addition, the Depositor shall cause the
related Seller to deposit into a Certificate Account, together with such
shortage, if any, an amount equal to interest on the Deleted Mortgage Loans at a
rate equal to the sum of the applicable Mortgage Rate from the Due Date as to
which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the Special Servicer but remaining unpaid or
unreimbursed, and interest on unreimbursed Advances with respect to such Deleted
Mortgage Loans at the Advance Rate. The Depositor shall cause the related
Seller, in the case of the Mortgage Loans, to give notice in writing
(accompanied by an Officer's Certificate as to the calculation of such shortage)
to the Trustee, the Paying Agent and the 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 a Certificate Account as the account to which
funds in the amount of the Purchase Price are to be wired. Any such purchase of
a Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the applicable
Master Servicer and the Special Servicer shall each tender to the related
Seller, upon delivery to each of them of a receipt executed by such Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the Mortgage
File shall be endorsed or assigned to the extent necessary or appropriate to the
related Seller or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the 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
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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 an
Escrow Account relating to the Mortgage Loan being repurchased or substituted
for. The applicable Master Servicer shall indemnify the Trustee for all costs,
liabilities and expenses (including attorneys' fees) incurred by the Trustee in
connection with any negligent or intentional misuse of any such powers of
attorney by the applicable Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) MSMC, as Seller under the Mortgage
Loan Purchase Agreement I will be providing the remedies with respect to the
MSMC Loans, (ii) PMCF, as Seller under the Mortgage Loan Purchase Agreement II
will be providing the remedies with respect to the PMCF Loans, (iii) Xxxxx
Fargo, as Seller under the Mortgage Loan Purchase Agreement III will be
providing the remedies with respect to the Xxxxx Fargo Loans and (iv) SunTrust,
as Seller under the Mortgage Loan Purchase Agreement IV will be providing the
remedies with respect to the SunTrust Loans.
(d) The Trustee or its designee (which, with the applicable Master
Servicer's consent, may be a Master Servicer or which, with the Special
Servicer's consent, may be the Special Servicer) shall enforce the provisions of
this Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to each Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein 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
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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 Mortgage Loans in exchange for the
REMIC I Interests, (ii) the REMIC I Regular Interests in exchange for the REMIC
II Interests, (iii) the REMIC II Regular Interests in exchange for the REMIC III
Certificates and (iv) the right to receive Excess Interest in exchange for the
Class T Certificates.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE LOANS.
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the
document delivery requirements set forth herein will be satisfied by the
delivery by the applicable Seller of copies of each such document specified
herein (other than the Mortgage Note (and all intervening endorsements)
evidencing the Mortgage Loan, with respect to which the originals shall be
required); provided, the document delivery requirements for the Assignment of
Mortgage, any assignment of Assignment of Leases and any UCC-2 or UCC-3
financing statement set forth herein will be satisfied by the delivery by the
applicable Seller of copies of such documents made in favor of the trustee of
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the respective master
servicer, special servicer and trustee for the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and the other holders of the related
Non-Serviced Companion Loans, each stating that, among other things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the Closing Date.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates and 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-2 Certificates will be
issuable in denominations of $1,000,000. The Class X-1, 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 P, Class Q and Class S 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
T, Class R-I, Class R-II and Class R-III Certificates will be issued in minimum
Percentage Interests of 10% and integral multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after
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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 Senior, Class X, 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, Class P,
Class Q and Class S 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 Q and Class S 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.
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(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 1933 Act and any applicable state
securities laws, or is otherwise made in accordance with the 1933 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 1933 Act
(other than in connection with the initial issuance of the Certificates or a
transfer of such Non-Registered Certificate by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit D-1 hereto and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer shall be made without registration under the 1933 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, either of the Master Servicers, the Special Servicer, the Paying
Agent, the Trustee or the Certificate Registrar in their respective capacities
as such). If a transfer of any interest in a Non-Registered Certificate that
constitutes a Book-Entry Certificate is to be made without registration under
the 1933 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 1933 Act. None of the Depositor, the Fiscal Agent, the Paying Agent, the
Trustee, either of the Master Servicers, the Special Servicer or the Certificate
Registrar is obligated to register or qualify any Class of Non-Registered
Certificates under the 1933 Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer of any
Certificate. Any Certificateholder or Certificate Owner desiring to effect a
transfer of Non-Registered Certificates or interests therein shall, and does
hereby agree to, indemnify the Depositor, each Underwriter, the Trustee, the
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Fiscal Agent, each Master Servicer, the Special Servicer the Paying Agent and
the Certificate Registrar against any liability that may result if the transfer
is not exempt from such registration or qualification or is not made in
accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, either of the Master Servicers, the Special Servicer or
the Certificate Registrar to any obligation in addition to those undertaken in
this Agreement. Each Person who acquires any Non-Investment Grade Certificate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Non-Investment Grade Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan; or (ii) that, in the case of a Non-Investment Grade
Certificate, the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE 95-60 or another exemption from the "prohibited transactions" rules
under ERISA by the U.S. Department of Labor or similar exemption under Similar
Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
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(A) (1) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee and (2) each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Qualified Institutional
Buyer and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Qualified Institutional
Buyer.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is a Qualified
Institutional Buyer, that it is not acquiring its Ownership Interest
in the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, that it is a United States Tax Person, that if
such Transferee is a partnership, trust or disregarded entity for U.S.
federal income tax purposes, then each Person that may be allocated
income from a Residual Certificate is a United States Tax Person, that
it is not a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any 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 not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax treaty,
of such proposed Transferee or any other United States Tax Person,
that it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13 of
such Transfer Affidavit and Agreement are true or that Section 13 is
not applicable, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States 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
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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, is not a United
States Tax Person, is a foreign permanent establishment or fixed base,
within the meaning of any applicable income tax treaty, of any United
States Tax Person or is a Person with respect to which income on the
Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of any applicable
income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(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 Fiscal Agent, a Master Servicer, the Special Servicer, the
Certificate Registrar or the Paying Agent shall be under any liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 3.3(e) or
for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax 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
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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.
Each Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession or
reasonably available to it necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Residual Certificate to any Person
who is not a Permitted Transferee, including the information described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as among its
record holders at any time any Person which is not a Permitted Transferee. The
Person holding such Ownership Interest shall be responsible for the reasonable
compensation of each Master Servicer and the Paying Agent for providing such
information.
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 of REMIC I, REMIC II or REMIC III to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which
is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer
of a Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicers, the Special Servicer, the Trustee,
the Fiscal Agent, the Paying Agent or the Certificate Registrar shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does
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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 a Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
(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
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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, a Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent
and any agent of a Master Servicer, the Special Servicer, the Fiscal Agent, the
Paying Agent, the Trustee or the Operating Adviser may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither a Master Servicer,
the Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the
Operating Adviser nor any agent of a Master Servicer, the Special Servicer, the
Fiscal Agent, the Trustee, the Paying Agent, or the Operating Adviser shall be
affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, a Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
a Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee or the Operating Adviser, as applicable, access during normal business
hours to a current list of the Certificateholders. The expense of providing any
such information requested by such Person shall be borne by the party requesting
such information and shall not be borne by the Certificate Registrar or the
Trustee. Every Certificateholder, by receiving and holding a Certificate, agrees
that the Certificate Registrar and the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class X-0X, Xxxxx X-0X, Xxxxx X-0X, Class A-AB,
Class A-3, 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, Class P, Class Q and Class S 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
that 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
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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, each Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or 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 E, Class F, Class G, Class H and Class J 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 K, Class L, Class M, Class N, Class
O, Class P, Class Q and Class S Certificates initially sold to Institutional
Accredited Investors that are not Qualified Institutional Buyers 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
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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 Bank or Clearstream Bank;
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 Bank or Clearstream Bank (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 Bank or Clearstream Bank 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
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, 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 Bank or
Clearstream Bank 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
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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
Bank and Clearstream Bank).
(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 Bank or Clearstream Bank, 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 Bank or Clearstream Bank, 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.
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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 each Master
Servicer in writing) that the continuation in global form of the Certificates
being evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Clearing Agency and request the Clearing
Agency to notify all Certificate Owners, through the applicable Participants, of
the occurrence of the event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Global Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates. None of the
Depositor, the Trustee, the Paying Agent, the Certificate Registrar or the
Fiscal Agent, shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the applicable Master Servicer and, if such Master Servicer does not make
such Advances, by the Trustee and if the Trustee does not make such Advances, by
the Fiscal Agent except to the extent that such Master Servicer, the Trustee or
the Fiscal Agent, as applicable, determines in accordance with Section 4.4
below, that any such Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the 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 the applicable Master
Servicer shall make a P&I Advance in respect of each Mortgage Loan of such
amount no later than the Master Servicer Remittance Date. It is understood that
the obligation of the applicable 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 the Special
Servicer has determined in accordance with the Servicing Standard that such P&I
Advance if made would be a Nonrecoverable Advance and has directed the
applicable Master Servicer not to make such P&I Advance; provided that the
Special Servicer shall be under no obligation to make such determination. Such
determination shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not make P&I Advances
under this Agreement. If the applicable 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. If the Trustee fails to
make a P&I Advance that it is required to make under this Agreement, it shall
promptly notify the Fiscal Agent and the Paying Agent of such failure.
(b) If the applicable Master Servicer determines that there is a P&I
Advance Amount for a Distribution Date, such Master Servicer shall on the
related Master Servicer Remittance Date either (A) deposit in a Certificate
Account an amount equal to the P&I Advance Amount or (B) utilize funds in a
Certificate Account being held for future distributions or withdrawals to make
such Advance (or a combination of clauses (A) and (B) if the funds in such
Certificate Account being held for future distributions or withdrawals are
insufficient). 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 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
AND SERVICED PARI PASSU MORTGAGE LOANS.
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With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the applicable Master
Servicer shall make its determination that a P&I Advance previously made on any
P&I Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance with respect to such
P&I Pari Passu Loan in accordance with Section 4.1 independently of any
determination made by any Other Master Servicer under the related Other
Companion Loan Pooling and Servicing Agreement in respect of any P&I Pari Passu
Loan following deposit of the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans into a commercial mortgage securitization trust, and
the Other Master Servicer shall make its own determination that it has made a
P&I Advance that is a Nonrecoverable Advance (both as defined in the related
Other Companion Loan Pooling and Servicing Agreement) or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable Advance (both as defined in
the related Other Companion Loan Pooling and Servicing Agreement) with respect
to the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage
Loans, as applicable, in accordance with the related Other Companion Loan
Pooling and Servicing Agreement. The determination by either the applicable
Master Servicer or the Other Master Servicer made on the earlier of (i) the
Advance Report Date and (ii) the Other Advance Report Date that any such P&I
Advance is nonrecoverable shall be binding on the Other Master Servicer and the
applicable Master Servicer, as applicable, the Certificateholders and the
holders of any securities relating to the Non-Serviced Companion Mortgage Loans
or Serviced Companion Mortgage Loans, as applicable. The applicable Master
Servicer shall not make a P&I Advance with respect to any P&I Pari Passu Loan
after its receipt of notice from the related Other Master Servicer that it has
determined that it has made a P&I Advance that is a Nonrecoverable Advance on
the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage Loans,
as applicable, or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable Advance pursuant to the relevant Other Companion Loan Pooling and
Servicing Agreement.
If the applicable Master Servicer determines that a P&I Advance would
be (if made), or any outstanding P&I Advance previously made is, a
Nonrecoverable Advance, the applicable Master Servicer shall provide the Other
Master Servicer written notice of such determination. If the applicable Master
Servicer receives written notice by the Other Master Servicer that it has
determined, with respect to any Mortgage Loan, that any proposed future P&I
Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance,
the applicable Master Servicer shall not make any additional P&I Advances with
respect to such Mortgage Loan. Notwithstanding the foregoing, the applicable
Master Servicer shall continue to have the discretion provided in this Agreement
to determine that any future P&I Advance or outstanding P&I Advance would be, or
is, as applicable, a Nonrecoverable Advance. Once such a determination is made
by the applicable Master Servicer or such Master Servicer receives written
notice of such determination by the Other Master Servicer, the applicable Master
Servicer shall follow the process set forth in this paragraph before making any
additional P&I Advances with respect to such Mortgage Loan.
Following a securitization of a Serviced Companion Mortgage Loan, the
applicable Master Servicer shall be required to deliver to the related Other
Master Servicer the following information: (i) the CMSA Reports and any other
loan related information (in the form received) that is reasonably requested by
the Other Master Servicer relating to the related
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Serviced Pari Passu Mortgage Loan, and applicable to a determination that an
Advance is or would be a Nonrecoverable Advance, within one Business Day of the
applicable Master Servicer's receipt thereof, (ii) notice of any Servicing
Advance it, the Trustee or the Fiscal Agent makes with respect to the related
Serviced Pari Passu Mortgage Loan within one Business Day of the making of such
Advance and (iii) notice of any determination that any Servicing Advance is a
Nonrecoverable Advance within one Business Day thereof.
SECTION 4.2 SERVICING ADVANCES. The applicable Master Servicer and, if
the applicable Master Servicer does not, the Trustee to the extent the Trustee
receives written notice from the Paying Agent that such Advance has not been
made by the applicable Master Servicer, and if the Trustee does not, the Fiscal
Agent (to the extent the Fiscal Agent receives written notice that such Advance
has not been made by the Trustee), shall make Servicing Advances to the extent
provided in this Agreement, except to the extent that the applicable Master
Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance and, subject to the last sentence of this Section 4.2,
except to the extent the Special Servicer determines in accordance with the
Servicing Standard and Section 4.4 that such Advance, if made, would be a
Nonrecoverable Advance, in which event the Special Servicer shall promptly
direct the applicable Master Servicer not to make such Advance; provided that
the Special Servicer shall be under no obligation to make such determination.
Such determination by the applicable Master Servicer or the Special Servicer
shall be conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders and, in the case of any B Note, the holder of the related B
Note and, in the case of any Serviced Pari Passu Mortgage Loan, the holder of
the related Serviced Companion Mortgage Loan. Notwithstanding any other
provision of this Agreement, the 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 applicable Master Servicer shall reimburse the
Special Servicer for such Servicing Advance with interest thereon at the Advance
Rate within 20 days of receipt of a statement therefor and, upon such
reimbursement, the applicable Master Servicer shall be deemed to have made such
Servicing Advance at the same time the Special Servicer made such Servicing
Advance and shall be entitled to reimbursement therefor pursuant to Section 5.2.
The applicable Master Servicer shall promptly notify the Paying Agent in writing
if it has failed to make a Servicing Advance that it is required to make
hereunder. Promptly after discovering or receiving notice that the 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. The Trustee shall promptly notify the Paying Agent in writing if it has
failed to make a Servicing Advance that it is required to make hereunder.
Promptly after discovering or receiving notice that the Trustee has failed to
make a Servicing Advance that the Trustee is required to make hereunder, the
Paying Agent shall promptly notify the Fiscal Agent in writing of the failure by
the Trustee to make such Servicing Advance. The applicable Master Servicer may
make Servicing Advances in its own discretion if it determines that making such
Servicing Advance is in the best interest of the Certificateholders, even if
such Master Servicer or the Special Servicer has determined, in accordance with
Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is obligated
to make Servicing Advances pursuant to the related Non-Serviced Mortgage Loan
Pooling and
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Servicing Agreement with respect to any Non-Serviced Mortgage Loan, and the
applicable Master Servicer shall not have any obligation to make Servicing
Advances with respect to such Mortgage Loan.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the applicable Master Servicer fails to make a
P&I Advance with respect to a Mortgage Loan by the Master Servicer Remittance
Date (other than a P&I Advance that such Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
with respect to such Mortgage Loan 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 that the Trustee fails to make a P&I Advance required to be made by
the Trustee hereunder on the Distribution Date (other than a P&I Advance that
the applicable Master Servicer, the Special Servicer or the Trustee determines
is a Nonrecoverable Advance), it shall notify the Fiscal Agent and the Fiscal
Agent will advance such P&I Advance unless the Fiscal Agent determines that any
such P&I Advance, if made, would be a Nonrecoverable Advance. To the extent that
the Fiscal Agent is required hereunder to make P&I Advances on the Mortgage
Loans, it shall deposit the amount thereof in the Distribution Account by 1:00
p.m. (New York City time) on each such Distribution Date. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the applicable Master
Servicer has failed to make a P&I Advance. The Paying Agent shall notify the
Fiscal Agent in writing as soon as practicable, but not later than 12:00 noon
(New York City time) on the Distribution Date if the Trustee has failed to make
a P&I Advance.
(b) To the extent that the applicable 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 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.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that such
Servicing Advance has not been made by the applicable Master Servicer (other
than a Servicing Advance that such Master Servicer or the Trustee has determined
to be a Nonrecoverable Advance), and the Fiscal Agent shall have received
written notice thereof, the Fiscal Agent will promptly advance such Servicing
Advance, unless the Fiscal Agent determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be made
by it hereunder shall not constitute a default by the initial Trustee hereunder
if the initial Fiscal Agent makes such Advance at or before the time when the
Trustee was required to make such Advance.
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SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the applicable Master Servicer or the Special Servicer
determines at any time, in its sole discretion, exercised in good faith, 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 (in the case of any such determination
by the Special Servicer), the Paying Agent, the Special Servicer (in the case of
any such determination by the applicable Master Servicer), the Operating Adviser
and the Rating Agencies (and the holder of the Serviced Companion Mortgage Loan
if the Advance relates to a Loan Pair, and the holder of the B Note if the
Advance relates to an A/B Mortgage Loan) by the Business Day prior to the
Distribution Date. Such Officer's Certificate shall set forth the reasons for
such determination of nonrecoverability, together with, to the extent such
information, report or document is in the applicable Master Servicer's or
Special Servicer's possession, any related financial information such as related
income and expense statements, rent rolls, occupancy status, property
inspections and any Appraisals performed within the last 12 months on the
Mortgaged Property, and, if such reports are used by the applicable Master
Servicer or the Special Servicer, as applicable, to determine that any P&I
Advance or Servicing Advance, as applicable, would be a Nonrecoverable Advance,
any engineers' reports, environmental surveys, internal final valuations or
other information relevant thereto which support such determination. If the
Trustee or the Fiscal Agent, as applicable, determines at any time that any
portion of an Advance previously made or a portion of a proposed Advance that
the Trustee or the Fiscal Agent, as applicable, is required to make pursuant to
this Agreement, if made, would constitute a Nonrecoverable Advance, such
determination shall be evidenced by an Officer's Certificate of a Responsible
Officer of the Trustee or the Fiscal Agent, as applicable, delivered to the
Depositor, the applicable Master Servicer, the Special Servicer, the Paying
Agent and the Operating Adviser similar to the Officer's Certificate of the
applicable Master Servicer or the Special Servicer described in the prior
sentence. If the Special Servicer determines at any time that any portion of an
Advance previously made would constitute a Nonrecoverable Advance (provided,
that the Special Servicer shall have no obligation to make such determination),
such determination shall be evidenced by an Officer's Certificate of a
Responsible Officer of the Special Servicer, delivered to the Depositor, the
applicable Master Servicer, the Trustee, the Fiscal Agent, the Paying Agent and
the Operating Adviser similar to the Officer's Certificate of the applicable
Master Servicer described above. For the avoidance of doubt, the Special
Servicer shall not have any right to revise any nonrecoverability determination
that may have been made by the applicable Master Servicer, the Trustee or the
Fiscal Agent. Each of the applicable Master Servicer, the Trustee and the Fiscal
Agent shall be entitled to rely on any nonrecoverability determination that is
made by the Special Servicer as aforesaid. The Trustee and the Fiscal Agent
shall not be required to make an Advance that the applicable Master Servicer or
the Special Servicer (or with respect to a Mortgage Loan included in a Loan Pair
or any Non-Serviced Mortgage Loan, the related Other Master Servicer) has
previously determined to be a Nonrecoverable Advance. Notwithstanding any other
provision of this Agreement, none of the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. A Master Servicer's or the Special Servicer's
determination in accordance with the above provisions
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shall be conclusive and binding on the Trustee, the Fiscal Agent, the Paying
Agent and the Certificateholders. The applicable Master Servicer shall consider
Unliquidated Advances in respect of prior P&I Advances and Servicing Advances as
outstanding Advances for purposes of nonrecoverablility determinations as if
such Unliquidated Advance were a P&I Advance or Servicing Advance, as
applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee, as applicable, shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable Advances pursuant to and to the extent set forth
in the related Non-Serviced Mortgage Loan Intercreditor Agreement (with, in each
case, any accrued and unpaid interest thereon provided for under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the manner set
forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from a Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's own
funds shall accrue interest on a daily basis, at a per annum rate equal to the
Advance Rate, from and including the date such Advance was made to but not
including the date on which such Advance has been reimbursed; provided, however,
that neither the applicable Master Servicer nor any other party shall be
entitled to interest accrued on the amount of any P&I Advance with respect to
any Mortgage Loan for the period commencing on the date of such P&I Advance and
ending on the day on which the grace period applicable to the related
Mortgagor's obligation to make the related Scheduled Payment expires pursuant to
the related Mortgage Loan or B Note documents. All Late Collections on any
Non-Serviced Mortgage Loan in respect of interest shall, promptly following
receipt thereof, be applied by the applicable Master Servicer to reimburse the
interest component of any P&I Advance outstanding with respect to such
Non-Serviced Mortgage Loan. Any party that makes a P&I Advance with respect to
any Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced
Mortgage Loan Master Servicer monthly, at least two Business Days prior to the
next succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of
whether (and, if any, how much) Advance Interest will be payable on the interest
component of that P&I Advance through the next succeeding related Master
Servicer Remittance Date. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan, B
Note or REO Property and treated as collections of principal or interest shall
be applied first to reimburse the earliest P&I Advance, and then each succeeding
P&I Advance to the extent not inconsistent with Section 4.6. The 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 (and the Serviced Companion Mortgage Loans) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The 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 Fee and default interest that relates to the
period commencing on the date of a Servicing Transfer Event in respect of a
Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain
Late Fees and default interest with respect to such Specially Serviced Mortgage
Loan, subject to the offsets set forth below) as additional servicing
compensation only to the extent such Late Fees and default interest exceeds
Advance Interest accrued or previously paid with respect to the related Mortgage
Loan. The Special Servicer,
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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 in respect of such
Specially Serviced Mortgage Loan to the applicable Master Servicer, the Trustee
or the Fiscal Agent, as applicable and (b) to the Trust, any losses previously
incurred by the Trust with respect to such Specially Serviced Mortgage Loan and
(ii) retain any remaining portion of such Late Fees and default interest as
additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, Serviced
Companion Mortgage Loan, B Note, 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, any Serviced
Companion Mortgage Loan or any B Note or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any Serviced Companion Mortgage Loan, any B Note, any Specially Serviced
Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement
Amount with respect to any Determination Date shall be applied to reimburse (i)
the Fiscal Agent for any Advances outstanding to the Fiscal Agent with respect
to any of such Mortgage Loans, Serviced Companion Mortgage Loan, B Note,
Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and then (ii)
the Trustee for any Advances outstanding to the Trustee with respect to any of
such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (iii) the Master Servicers
for any Advances outstanding to the Master Servicers with respect to any of such
Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced
Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the
Master Servicers with respect to such Advances and then (iv) the Special
Servicer for any Advances outstanding to the Special Servicer with respect to
any of such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Special Servicer with respect to such Advances. To the extent that any
Advance Interest payable to the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent with respect to a Specially Serviced
Mortgage Loan or REO Mortgage Loan cannot be recovered from the related
Mortgagor, the amount of such Advance Interest shall be payable to the Fiscal
Agent, the Trustee, the Special Servicer or the applicable Master Servicer, as
the case may be, from amounts on deposit in such Master Servicer's Certificate
Account (or sub-account thereof) or the Distribution Account, to the extent of
amounts identified to be applied therefor, pursuant to Section 5.2(a) or Section
5.3(b)(ii). Each Master Servicer's, the Special Servicer's, the Fiscal Agent's
and the Trustee's right of reimbursement under this Agreement for Advances shall
be prior to the rights of the Certificateholders (and, in the case of a Serviced
Companion Mortgage Loan, the holder thereof
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and, in the case of a B Note, the holder thereof) to receive any amounts
recovered with respect to such Mortgage Loans, Serviced Companion Mortgage
Loans, B Notes or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee,
the applicable Master Servicer and/or the Special Servicer (in accordance with
the priorities specified in the preceding paragraph) first, from Late Fees and
default interest collected with respect to the related Mortgage Loan during the
Collection Period during which the related Advance is reimbursed, and then from
Excess Liquidation Proceeds then available prior to payment from any other
amounts. Late Fees and default interest will be applied on a "loan-by-loan
basis" (under which Late Fees and default interest will be offset against the
Advance Interest arising only from that particular Mortgage Loan) to the payment
of Advance Interest on all Advances then being reimbursed or previously paid.
Advance Interest payable to the applicable Master Servicer, the Special
Servicer, the Fiscal Agent or the Trustee in respect of Servicing Advances on
any Loan Pair shall be allocated to the Serviced Pari Passu Mortgage Loan and
the Serviced Companion Mortgage Loan on a pro rata basis based upon the
Principal Balance thereof.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the applicable Master Servicer
shall reimburse the Special Servicer for such expenditures within 30 days after
receiving an invoice and a report from the Special Servicer, subject to Section
4.4. With respect to each Collection Period, the Special Servicer shall deliver
such invoice and report to the applicable Master Servicer by the following
Determination Date. All such amounts reimbursed by the applicable Master
Servicer shall be a Servicing Advance. In the event that the applicable Master
Servicer fails to reimburse the Special Servicer hereunder or such Master
Servicer determines that such Servicing Advance was or, if made, would be a
Nonrecoverable Advance and such Master Servicer does not make such payment, the
Special Servicer shall notify such Master Servicer and the Paying Agent in
writing of such nonpayment and the amount payable to the Special Servicer and
shall be entitled to receive reimbursement from the Trust as an Additional Trust
Expense. The Master Servicers, the Paying Agent and the Trustee shall have no
obligation to verify the amount payable to the Special Servicer pursuant to this
Section 4.6(e) and circumstances surrounding the notice delivered by the Special
Servicer pursuant to this Section 4.6(e).
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 (i) in the case of the Xxxxx Fargo Master Servicer, "Xxxxx Fargo Bank,
National Association, as Master Servicer for LaSalle
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Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6" (the
"Xxxxx Fargo Certificate Account") and (ii) in the case of the PAR Master
Servicer, "Prudential Asset Resources, Inc., as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6" (the "PAR
Certificate Account"). Each of the Xxxxx Fargo Certificate Account and the PAR
Certificate Account is a "Certificate Account" under this Agreement.
(b) On or prior to the date a Master Servicer shall first deposit
funds in the applicable Certificate Account, 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. A Master Servicer shall take such actions as
are necessary to cause the depository institution holding the applicable
Certificate Account to hold such account in the name of such Master Servicer as
provided in Section 5.1(a), subject to such Master Servicer's (or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) Each Master Servicer shall deposit, or cause to be deposited, into
the applicable Certificate Account on the Business Day following receipt (or, in
the case of an inadvertent failure to make such deposit on the Business Day
following receipt, within 3 Business Days of discovery of such failure and in
the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the applicable
Master Servicer by the Special Servicer from an REO Account pursuant to Section
9.14), other than in respect of interest and principal on the Mortgage Loans,
any Serviced Companion Mortgage Loan or any B Note due on or before the Cut-Off
Date which shall be remitted to the Depositor (provided that the applicable
Master Servicer (I) may retain amounts otherwise payable to the applicable
Master Servicer as provided in Section 5.2(a) rather than deposit them into the
applicable Certificate Account and (II) shall, rather than deposit them in the
applicable 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,
any Serviced Companion Mortgage Loan and any B Note;
(B) Interest: all payments on account of interest on the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note;
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note;
(D) Insurance Proceeds: all Insurance Proceeds (and other
insurance proceeds payable to a B Note holder) 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
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shall be deposited by the applicable Master Servicer into an Escrow
Account and not deposited in the applicable Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds (and other
condemnation proceeds payable to a B Note holder) other than proceeds
to be applied to the restoration or repair of the property subject to
the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be
deposited by the applicable Master Servicer into an Escrow Account and
not deposited in the applicable Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the applicable Master Servicer pursuant to Section 5.1(e) in
connection with losses realized on Eligible Investments with respect
to funds held in the applicable Certificate Account and amounts
required to be deposited by the Special Servicer pursuant to Section
9.14(b) in connection with losses realized on Eligible Investments
with respect to funds held in the REO Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the applicable Certificate Account
pursuant to this Agreement, including Purchase Proceeds of any
Mortgage Loans repurchased by a Seller or substitution shortfall
amounts (as described in the fifth paragraph of Section 2.3(a)) paid
by a Seller in connection with the substitution of any Qualifying
Substitute Mortgage Loans, payments or recoveries in respect of
Unliquidated Advances or in respect of Nonrecoverable Advances paid
from principal collections on the Mortgage Loan pursuant Section
5.2(a)(II), any other amounts received with respect to any Serviced
Companion Mortgage Loan and with respect to any B Note, all other
amounts received pursuant to the cure and purchase rights set forth in
the applicable Intercreditor Agreement; and
(J) to the extent not otherwise set forth above, all amounts
received from each Non-Serviced Mortgage Loan Master Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage
Loan Trustee pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the applicable Master Servicer
shall establish and maintain one or more sub-accounts of a Certificate Account
(each an "A/B Loan Custodial Account") into which such Master Servicer shall
deposit any amounts described above that are required to be paid to the holder
of the related B Note pursuant to the terms of the related Intercreditor
Agreement, in each case on the same day as the deposit thereof into a
Certificate Account. Any A/B Loan Custodial Account shall be held in trust for
the benefit of the holder of the related B Note and shall not be part of any
REMIC Pool.
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With respect to any Loan Pair, the applicable Master Servicer shall
establish and maintain one or more sub-accounts of the applicable Certificate
Account (each, a Serviced Companion Mortgage Loan Custodial Account) into which
such Master Servicer shall deposit any amounts described above that are required
to be paid to the holder of the related Serviced Companion Mortgage Loan
pursuant to the terms of the related Loan Pair Intercreditor Agreement, in each
case on the same day as the deposit thereof into a Certificate Account. Each
Serviced Companion Mortgage Loan Custodial Account shall be held in trust for
the benefit of the holder of the related Serviced Companion Mortgage Loan and
shall not be part of any REMIC Pool.
Remittances from any REO Account to the applicable Master Servicer for
deposit in the applicable Certificate Account shall be made by the Special
Servicer no later than the Special Servicer Remittance Date.
(d) Each Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall on the Master Servicer Remittance Date, remit to the Paying Agent for
deposit in the Interest Reserve Account in respect of each Interest Reserve
Loan, an amount equal to one day's interest at the related REMIC I Net Mortgage
Rate (without any conversion to a 30/360 basis as provided in the definition
thereof) on the Scheduled Principal Balance of such Mortgage Loan as of the Due
Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be so remitted to the Paying Agent, the REMIC
I Net Mortgage Rate used in this calculation for those months will be calculated
without regard to any adjustment for Interest Reserve Amounts or the interest
accrual basis as described in the proviso to the definition of "REMIC I Net
Mortgage Rate."
(e) Funds in a Certificate Account (including any A/B Loan Custodial
Accounts and Serviced Companion Mortgage Loan Custodial Accounts) may be
invested and, if invested, shall be invested by, and at the risk of, the
applicable Master Servicer in Eligible Investments selected by the applicable
Master Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 and the holder of any related Serviced Companion
Mortgage Loan or B Note as their interests may appear." None of the Depositor,
the Special Servicer, 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 (and, solely to the
extent that the loss is of an amount
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credited to an A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or Serviced
Companion Mortgage Loan Custodial Account, as the case may be), out of its own
funds immediately as realized, provided that, such investment losses shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federal or state chartered depositary
institution or trust company at which such Certificate Account is maintained, so
long as such depositary institution or trust company (a) satisfied the
qualifications set forth in the definition of "Eligible Account" both at the
time such investment was made and as of a date not more than 30 days prior to
the date of such loss and (b) is not the same Person as the Person that made the
relevant investment. If the applicable Master Servicer deposits in or transfers
to the applicable Certificate Account, any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial 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, such A/B Loan Custodial Account or such Serviced Companion Mortgage
Loan Custodial Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the applicable Master Servicer shall
have deposited in the applicable Certificate Account, the related Serviced
Companion Mortgage Loan Custodial Account or the related A/B Loan Custodial
Account, as applicable, an amount equal to all amounts due under any such
Eligible Investment (net of anticipated income or earnings thereon that would
have been payable to the applicable 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. Such 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. 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 VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as to which an
upfront reserve was collected at closing in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the applicable Master
Servicer and the Special Servicer (which shall itself consult with the Operating
Adviser) will consult with each other as to whether there exists a material
default under the underlying Mortgage Loan documents.
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(h) In the case of the Mortgage Loans set forth on Schedule XI, as to
which the Scheduled Payment is due in a calendar month on a Due Date (including
any grace period) that may occur after the end of the Collection Period ending
in such calendar month, the applicable Master Servicer shall, unless the
Scheduled Payment is received before the end of such Collection Period, make a
P&I Advance by deposit to a 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 A CERTIFICATE ACCOUNT AND INTEREST
RESERVE ACCOUNT.
(a) Subsection (I). Each Master Servicer shall, from time to time,
make withdrawals from its Certificate Account and remit them by wire transfer
prior to 12:00 p.m., New York City time, on the related Master Servicer
Remittance Date in immediately available funds to the account specified in this
Section or otherwise (w) to such account as such Master Servicer shall determine
from time to time of amounts payable to such Master Servicer from the applicable
Certificate Account (or, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account or, insofar as they relate to a Serviced Companion
Mortgage Loan, from the related Serviced Companion Mortgage Loan Custodial
Account) pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix)
below; (x) to the account specified in writing by the Paying Agent from time to
time of amounts payable to the Paying Agent and the Trustee from such
Certificate Account (and, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account and, insofar as they relate to a Serviced Companion
Mortgage Loan, from the Serviced Companion Mortgage Loan Custodial Account)
pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and
(y) to the Special Servicer from time to time of amounts payable to the Special
Servicer from such Certificate Account (or, insofar as they relate to a B Note,
from the related A/B Loan Custodial Account or, insofar as they relate to a
Serviced Companion Mortgage Loan, from the related Serviced Companion Mortgage
Loan Custodial 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: the applicable Master Servicer shall pay (A) to itself
Late Fees (in excess of amounts used to pay Advance Interest) relating to
Mortgage Loans, Serviced Companion Mortgage Loans or B Notes which are not
Specially Serviced Mortgage Loans, Modification Fees relating to Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans as provided in Section 8.18, 50% of any assumption fees payable
under Section 8.7(a) or 8.7(b), 100% of any extension fees payable under Section
8.10 or other fees payable to such Master Servicer hereunder and (B) directly to
the Special Servicer, 50% of any assumption fees as provided in Section 8.7(a),
50% of any assumption fees as provided in Section 8.7(b), all assumption fees
relating to Specially Serviced Mortgage Loans, Modification Fees and other fees
collected on Specially Serviced Mortgage Loans, in each case to the extent
provided for herein from funds paid by the applicable Mortgagor, and Late Fees
and default interest collected on any Specially Serviced Mortgage Loan in excess
of Advance Interest payable to such Master Servicer, the Trustee or the Fiscal
Agent in respect of such Specially Serviced Mortgage Loan (which Advance
Interest such
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Master Servicer shall retain or pay to the Trustee or the Fiscal Agent, as the
case may be, to the extent provided for in this Agreement) to the extent the
Special Servicer is entitled to such Late Fees and default interest under
Section 4.5;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans as to which the
applicable Master Servicer is the Master Servicer, Serviced Companion Mortgage
Loans and B Notes, subject to clause (B) below and subsection (iv) of Section
5.2(a)(II), to reimburse or pay to the applicable Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) prior
to a Final Recovery Determination or determination in accordance with Section
4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on the
related Mortgage Loan, Serviced Companion Mortgage Loan or B Note, as
applicable, from payments made by the related Mortgagor of the amounts to which
a Servicing Advance relates or from REO Income from the related REO Property or
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds and, to the extent that a Servicing Advance has been or is being
reimbursed, any related Advance Interest thereon first, from Late Fees and
default interest collected with respect to the related Mortgage Loan during the
Collection Period during which such Advance is reimbursed, and then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in the applicable 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 will be offset against the Advance Interest arising only from
the particular Mortgage Loan) to the payment of Advance Interest on all Advances
on such Mortgage Loan (and any Serviced Companion Mortgage Loan and B Notes)
then being reimbursed or (y) after a Final Recovery Determination or
determination that any Servicing Advance on the related Mortgage Loan, Serviced
Companion Mortgage Loan or B Note is a Nonrecoverable Advance, any Servicing
Advances made on the related Mortgage Loan, related Serviced Companion Mortgage
Loan, related B Note or REO Property from any funds on deposit in the applicable
Certificate Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan, Serviced Companion Mortgage Loan, B Note or REO
Property) and pay Advance Interest thereon first, from Late Fees and default
interest collected during the Collection Period during which such Advance is
reimbursed (applying such Late Fees and default interest on a "loan-by-loan
basis", as described above, for all Mortgage Loans to the payment of Advance
Interest on all Advances on such Mortgage Loan (and any Serviced Companion
Mortgage Loans and B Notes) then being reimbursed or previously paid), then from
Excess Liquidation Proceeds then available and then from any other amounts on
deposit in such Certificate Account and (B) in the case of any Non-Serviced
Mortgage Loan and from any funds on deposit in such Certificate Account, to
reimburse the applicable Non-Serviced Mortgage Loan Master Servicer, the
applicable Non-Serviced Mortgage Loan Special Servicer, the applicable
Non-Serviced Mortgage Loan Trustee for Pari Passu Loan Nonrecoverable Advances
and any accrued and unpaid interest thereon provided for under the related
Non-Serviced Mortgage Loan Intercreditor Agreement and Non-Serviced Mortgage
Loan Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined to
be Nonrecoverable Advances): in the case of all Mortgage Loans as to which the
applicable Master Servicer is the Master Servicer, subject to subsection (iv) of
Section 5.2(a)(II), to reimburse or pay to the applicable Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a
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Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance
has been or is being reimbursed, any related Advance Interest thereon, first,
from Late Fees and default interest collected with respect to the related
Mortgage Loan during the Collection Period during which such Advance is
reimbursed, and then from Excess Liquidation Proceeds then available and then
from any other amounts on deposit in the applicable 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 will be offset against the
Advance Interest arising only from the particular Mortgage Loan) to the payment
of Advance Interest on all Advances on such Mortgage Loan then being reimbursed
or previously paid 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, any P&I Advances made on the related
Mortgage Loan or REO Property from funds on deposit in such 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 with respect to the related Mortgage Loan during
the Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "loan-by-loan basis", as described above,
for all Mortgage Loans to the payment of Advance Interest on all Advances on
such Mortgage Loans then being reimbursed or previously paid), then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in such Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee and to pay to the parties entitled thereto the Excess Servicing
Fees (to the extent not previously retained by any of such parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent, the Paying Agent Fee and the Trustee
Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set forth
herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the applicable Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the applicable Certificate
Account (including any A/B Loan Custodial Accounts and Serviced Companion
Mortgage Loan Custodial Accounts);
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(ix) Prepayment Interest Excesses: to pay to the applicable
Master Servicer the amount of the aggregate Prepayment Interest Excesses
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans (to
the extent not offset by Prepayment Interest Shortfalls relating to such
Mortgage Loans); and to pay to the Special Servicer the amount of the aggregate
Prepayment Interest Excesses relating to Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments (not from Liquidation Proceeds or
from modifications to Specially Serviced Mortgage Loans), to the extent not
offset by Prepayment Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
applicable Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the applicable Certificate
Account (excluding any Excess Interest) and of the amounts described in Section
5.1(d) in respect of Interest Reserve Amounts to the Distribution Account (or in
the case of any Excess Interest, deposit to the Excess Interest Sub-account
under Section 5.3(b)) other than amounts held for payment in future periods or
pursuant to clause (xii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the applicable
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
(A) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to the
portion of the applicable Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts necessary for the payments
or reimbursement of amounts described in any one or more of clauses
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xii)
above, but only insofar as the payment or reimbursement described
therein arises from or is related solely to such A/B Mortgage Loan and
is allocable to the related Mortgage Loan pursuant to this Agreement
or the related Intercreditor Agreement, and such Master Servicer shall
also be entitled to make transfers from time to time, from the related
A/B Loan Custodial Account to the portion of such Certificate Account
that does not constitute the A/B Loan Custodial Account, of amounts
transferred to such related A/B Loan Custodial Account in error, and
amounts necessary for the clearing and termination of such Certificate
Account pursuant to Section 8.29;
(B) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to the
portion of the applicable Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts not otherwise described in
clause (A) above to which the
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holder of an A Note is entitled under the A/B Mortgage Loan and the
related Intercreditor Agreement (including in respect of interest,
principal and Prepayment Premiums in respect of the A Note (whether or
not by operation of any provision of the related Intercreditor
Agreement that entitles the holder of such A Note to receive
remittances in amounts calculated without regard to any modification,
waiver or amendment of the economic terms of such A Note)); and
(C) the applicable Master Servicer shall on each Master Servicer
Remittance Date remit to the holder of the related B Note all amounts
on deposit in such A/B Loan Custodial Account (net of amounts
permitted or required to be transferred therefrom as described in
clauses (A) and/or (B) above), to the extent that the holder of such B
Note is entitled thereto under the related Intercreditor Agreement
(including by way of the operation of any provision of the related
Intercreditor Agreement that entitles the holder of such B Note to
reimbursement of cure payments made by it).
and provided further, however, that in the case of any Serviced Companion
Mortgage Loan:
(A) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the applicable Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts necessary for the payments or
reimbursement of amounts described in any one or more of clauses (i),
(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xii) above, but
only insofar as the payment or reimbursement described therein arises
from or is related solely to such Loan Pair and is allocable to the
Serviced Companion Mortgage Loan, and such Master Servicer shall also
be entitled to make transfers from time to time, from the related
Serviced Companion Mortgage Loan Custodial Account to the portion of a
Certificate Account that does not constitute any Serviced Companion
Mortgage Loan Custodial Account, of amounts transferred to such
related Serviced Companion Mortgage Loan Custodial Account in error,
and amounts necessary for the clearing and termination of such
Certificate Account pursuant to Section 8.29; provided, however that
such Master Servicer shall not be entitled to make transfers from the
portion of such Certificate Account that does not constitute any
Serviced Companion Mortgage Loan Custodial Account (other than amounts
previously transferred from the related Serviced Companion Mortgage
Loan Custodial Account in accordance with this clause (A)) of amounts
necessary for the payment or reimbursement of amounts described in any
one or more of the foregoing clauses;
(B) the applicable Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the applicable Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts not otherwise described in clause (A)
above to which the holder of a Serviced Pari Passu Mortgage Loan is
entitled under the related Loan Pair
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Intercreditor Agreement (including in respect of interest, principal
and Prepayment Premiums); and
(C) the applicable Master Servicer shall, one (1) Business Day after
the related Determination Date, remit to the holder of the related
Serviced Companion Mortgage Loan all amounts on deposit in such
related Serviced Companion Mortgage Loan Custodial Account (net of
amounts permitted or required to be transferred therefrom as described
in clauses (A) and/or (B) above), to the extent that the holder of
such Serviced Companion Mortgage Loan is entitled thereto under the
related Loan Pair Intercreditor Agreement.
No decision by the applicable Master Servicer, the Trustee or the
Fiscal Agent under either this Section 5.2(a) or subsection (iv) of Section
5.2(a)(II), to defer the reimbursement of Advances and/or Advance Interest shall
be construed as an agreement by such Master Servicer, the Trustee or the Fiscal
Agent to subordinate (in respect of realizing losses), to any Class of
Certificates, such party's right to such reimbursement during such period of
deferral.
In addition, if at any time a Master Servicer is entitled to make a
payment, reimbursement or remittance from its Certificate Account, the payment,
reimbursement or remittance can be made from any funds on deposit in such
Certificate Account and the amounts on deposit in such Certificate Account
(after withdrawing any portion of such amounts deposited in such Certificate
Account in error) are insufficient to satisfy such payment, reimbursement or
remittance and the amount on deposit in the Other Master Servicer's Certificate
Account (after withdrawing any portion of such amounts deposited in such
Certificate Account in error) is sufficient to make such payment, reimbursement
or remittance, then such Other Master Servicer shall withdraw funds from its
Certificate Account and make such payment, reimbursement or remittance within
three (3) Business Days following a written request therefor from the first
Master Servicer, which request is accompanied by an Officer's Certificate (1)
either (x) setting forth that the requesting Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent, the Paying Agent or another particular
Person, as applicable, is entitled to such payment, reimbursement or remittance
(and setting forth the nature and amount of such payment, reimbursement or
remittance and the party entitled thereto) or (y) forwarding a copy of any
Officer's Certificate or other information provided by the Special Servicer, the
Trustee, the Fiscal Agent, the Paying Agent or another particular Person, as the
case may be, that sets forth that such Person is entitled to such payment,
reimbursement or remittance (and the nature and amount of such payment,
reimbursement or remittance and the party entitled thereto) and (2) setting
forth that the requesting Master Servicer does not then have on deposit in its
Certificate Account funds sufficient for such reimbursement.
Expenses incurred with respect to any Loan Pair shall be allocated in
accordance with the related Loan Pair Intercreditor Agreement. Expenses incurred
with respect to an A/B Mortgage Loan shall be allocated in accordance with the
related Intercreditor Agreement. The applicable Master Servicer shall keep and
maintain a separate accounting for each Mortgage Loan, Serviced Companion
Mortgage Loan and B Note for the purpose of justifying any withdrawal or
transfer from the applicable Certificate Account, any Serviced Companion
Mortgage Loan Custodial Account and any A/B Loan Custodial Account, as
applicable. If funds
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collected in respect of the A Notes are insufficient to pay the Master Servicing
Fee, then the applicable Master Servicer shall be entitled to withdraw the
amount of such shortfall from the collections on, and other proceeds of, the B
Note that are held in the related A/B Loan Custodial Account. The applicable
Master Servicer shall not be permitted to withdraw any funds from the portion of
the applicable Certificate Account that does not constitute the A/B Loan
Custodial Account to pay amounts related to the B Note unless there are no
remaining funds in the related A/B Loan Custodial Account available to make such
payments that are required to be paid in accordance with the related
Intercreditor Agreement.
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 applicable Master Servicer to
abstain from reimbursing itself (or, if applicable, the Trustee or the
Fiscal Agent to abstain from obtaining reimbursement) for
Nonrecoverable Advances under certain circumstances at its sole
option. 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
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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 or the Fiscal Agent's) exercise of its sole option
authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts.
The applicable Master Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, 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 amount in the applicable
Collection Account allocable to principal received with respect to 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 net of any
Nonrecoverable Advances then outstanding and reimbursable from such
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 the aggregate amount in the applicable Collection Account
allocable to principal pursuant to the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to
Abstain from Reimbursements of Certain Nonrecoverable Advances. To the
extent that Section 5.2(a)(I) otherwise entitles the applicable Master
Servicer to reimbursement for any Nonrecoverable Advance (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 amount in the applicable Collection Account
allocable to principal received with respect to 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
amounts allocable to principal received with respect to 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, provided, that if
interest is used to reimburse such Nonrecoverable Advances, the party
entitled to such reimbursement shall notify the Rating Agencies at
least fifteen (15) days prior to such reimbursement, unless
circumstances exist that are extraordinary in the sole discretion of
such party, and (b) if and to the extent that
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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 on the Mortgage Loans for such
Collection Period (and Advance Interest thereon), such Master Servicer
(and the Trustee or the Fiscal Agent, 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 option, 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 that the aggregate amount that is deferred with respect to
all Nonrecoverable Advances (and Advance Interest thereon) with
respect to all Mortgage Loans for any particular Collection Period is
less than or equal to such excess described above in this clause (b).
If such Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) makes such an election at its sole option to defer
reimbursement with respect to all or a portion of a Nonrecoverable
Advance (and Advance Interest thereon), then such Nonrecoverable
Advance (and Advance Interest thereon) or portion thereof shall
continue to be fully reimbursable in any subsequent Collection Period
to the same extent as set forth above. In connection with a potential
election by such Master Servicer to abstain from the reimbursement of
a particular Nonrecoverable Advance or portion thereof during the
Collection Period for any Distribution Date, such Master Servicer (or
the Trustee or the Fiscal Agent, 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.
The reimbursements of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts set forth in clauses (iii) and (iv) above shall take
into account the allocation of amounts described in the last sentence of
the definition of "Liquidation Realized Loss."
None of the Master Servicers, the Trustee or the Fiscal Agent
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 Trustee or the Fiscal
Agent, 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 Trustee or the Fiscal Agent, 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
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Collection Period or to constitute a waiver or limitation on the right of
such Master Servicer (or the Trustee or the Fiscal Agent, as applicable) to
otherwise be reimbursed for such Nonrecoverable Advance (and Advance
Interest thereon). Any election by a Master Servicer, the Trustee or the
Fiscal Agent 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 Trustee, the Fiscal Agent or the other parties to this Agreement shall
have any liability to one another or to any of the Certificateholders or
any holder of a B Note or Serviced Companion Mortgage Loan 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 Trustee or the Fiscal Agent 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.
(v) Reimbursement Rights of the Master Servicers, Special
Servicer, Trustee and Fiscal Agent Are Senior. Nothing in this
Agreement shall be deemed to create in any Certificateholder a right
to prior payment of distributions over a Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's right to
reimbursement for Advances plus Advance Interest (whether those that
constitute Workout-Delayed Reimbursement Amounts, those that have been
the subject of a 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 the Mortgage Loans set
forth on Schedule XI, for which the Scheduled Payment due each month is due on a
Due Date (including any grace period) that may occur after the end of the
Collection Period in such month, sums received by the 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 Principal Prepayments and Balloon Payments received after the end of
such Collection Period but no later than the second Business Day immediately
preceding such Master Servicer Remittance Date on the Mortgage Loans set forth
on Schedule XI. The applicable Master Servicer shall use its best efforts to
remit to the Distribution Account on any Master Servicer Remittance Date for a
Collection Period any Balloon Payments received after the date that is two
Business Days immediately preceding the related Master Servicer Remittance Date
and prior to the Distribution Date. In connection with the deposit of any
Balloon Payments 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
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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 shall be liable or held
responsible for any resulting delay or failure in the making of such
distribution to Certificateholders or for any interest shortfall resulting from
such a delay or failure. For purposes of the definition of "Available
Distribution Amount" and "Principal Distribution Amount," (i) the Scheduled
Payments relating to the Mortgage Loans set forth on Schedule XI that are
collected after the end of the related Collection Period and (ii) Principal
Prepayments and Balloon Payments relating to the Mortgage Loans set forth on
Schedule XI received after the end of the related Collection Period but prior to
the Master Servicer Remittance Date shall each be deemed to have been collected
in the prior Collection Period, in each such case, to the extent that the
applicable Master Servicer remits those payments within the time frames
contemplated above for such Collection Period.
SECTION 5.3 DISTRIBUTION ACCOUNT, RESERVE ACCOUNT AND INTEREST RESERVE
ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii) and (iii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank, National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6, Distribution Account," (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,
National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ6, Reserve Account" and (iii) an account (the "Interest Reserve 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, National Association,"
as Paying Agent on behalf of LaSalle Bank National Association, as Trustee in
trust, for the benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-HQ6." The
Distribution Account, the Reserve Account and the Interest Reserve Account shall
be Eligible Accounts. Funds in the Reserve Account shall not be invested. The
Distribution Account and Reserve Account shall be held separate and apart from
and shall not be commingled with any other monies including, without limitation,
other monies of the Paying Agent held under this Agreement. The Interest Reserve
Account may be a sub-account of the Distribution Account.
Funds in the Distribution Account and the Interest Reserve Account may
be invested and, if invested, shall be invested by, and at the risk of, the
Paying Agent in Eligible Investments selected by the Paying Agent which shall
mature, unless payable on demand, not later than such time on the Distribution
Date which will allow the Paying Agent to make withdrawals from the Distribution
Account under Section 5.3(b), and any such Eligible Investment shall not be sold
or disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "LaSalle Bank National Association, as
Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-
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Through Certificates, Series 2005-HQ6 and the holder of any related B Note as
their interests may appear." None of the Depositor, the Mortgagors, the Special
Servicer, the Master 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 or the
Interest Reserve 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 or the Interest Reserve Account, as the case may be, any amount not
required to be deposited therein or transferred thereto, it may at any time
withdraw such amount or retransfer such amount from the Distribution Account or
the Interest Reserve Account, as the case may be, any provision herein to the
contrary notwithstanding.
(b) The Paying Agent shall deposit into the Distribution Account or
the Reserve Account, as applicable, on the Business Day received all moneys
remitted by each Master Servicer pursuant to this Agreement, including P&I
Advances made by each Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. The Paying Agent shall deposit amounts constituting
collections of Excess Interest on the Mortgage Loans into the Excess Interest
Sub-account. On any Master Servicer Remittance Date, the Master Servicers shall
have no duty to remit to the Distribution Account any amounts other than amounts
held in the applicable Certificate Account and collected during the related
Collection Period as provided in clauses (v) and (xi) of Section 5.2(a) and the
P&I Advance Amount. 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
Special Servicer, the Fiscal Agent and the Trustee (including the Trustee's Fee
(other than that portion thereof, that constitutes the Paying Agent's Fee)) and
the Paying Agent (including the Paying Agent Fee), or other expenses or other
amounts permitted to be paid hereunder and not previously paid to such Persons
pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders pursuant to
Section 6.5; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On each Distribution Date in March of every year commencing in
March 2006, the Paying Agent shall withdraw all amounts then in the Interest
Reserve Account and deposit such amounts into the Distribution Account.
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SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Servicer Report Administrator and
the Special Servicer and delivered to the Paying Agent by the Servicer Report
Administrator (no later than 1:00 p.m., New York time on the Report Date), the
Paying Agent shall make available to any interested party via its internet
website initially located at "xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's
Website"), (i) the Monthly 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 Loan Periodic Update File, Loan Setup File, Bond Level File and the
Collateral Summary File, (iv) the CMSA Advance Recovery Report, (v) the
supplemental reports set forth in paragraph (b) of the definition of
Unrestricted Servicer Reports and (vi) 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 Servicer Report
Administrator and the Special Servicer and delivered to the Paying Agent in
accordance herewith, the Paying Agent shall make available via the Paying
Agent's Website, on a restricted basis, the Restricted Servicer Reports
(including the Property File on or prior to each Distribution Date, commencing
in October 2005). The Paying Agent shall provide access to the Restricted
Servicer Reports, upon request, to each Certificateholder, to the holder of a B
Note, each of the parties to this Agreement, each of the Rating Agencies, each
of the Financial Market Publishers, each of the Underwriters, the Operating
Adviser, the Placement Agents, any prospective purchaser of the Certificates and
any Certificate Owner upon receipt (which may be in electronic form) from such
person of an Investor Certificate in the form of Exhibit Y, and any other person
upon the direction of the Depositor, the Placement Agents or any Underwriter.
For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call 000-000-0000.
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 Servicer Report Administrator or the Special Servicer and
shall have no obligation to verify such information and the Paying Agent may
disclaim responsibility for any information distributed by the Paying Agent for
which it is not the original source. In connection with providing access to the
Paying Agent's Website, the Paying Agent, may require registration and the
acceptance of a disclaimer. None of the Master Servicers, the Special 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.
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(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder (or holder of a Serviced
Companion Mortgage Loan or B Note) that is a savings association, bank, or
insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of a Serviced
Companion Mortgage Loan or B Note) such reports and access to non-privileged
information and documentation regarding the Mortgage Loans and the Certificates
as such Certificateholder (or such holder of a Serviced Companion Mortgage Loan
or B Note) may reasonably deem necessary to comply with applicable regulations
of the Office of Thrift Supervision or successor or other regulatory authorities
with respect to investment in the Certificates; provided that the Paying Agent
shall be entitled to be reimbursed by such Certificateholder (or such holder of
a Serviced Companion Mortgage Loan or B Note) for the Paying Agent's actual
expenses incurred in providing such reports and access. The holder of a B Note
shall be entitled to receive information and documentation only with respect to
its related A/B Mortgage Loan and the holder of a Serviced Companion Mortgage
Loan shall be entitled to receive information and documentation only with
respect to its related Loan Pair, pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the Financial
Market Publishers, the Depositor, the Master Servicers, the Special Servicer,
the Trustee, the Fiscal Agent, the Operating Adviser, any Certificateholder, the
holder of a B Note (with respect to the related A/B Mortgage Loan), the
Luxembourg Paying Agent, prospective Certificate Owner or any Person reasonably
designated by any Placement Agent, or any Underwriter upon reasonable notice and
during normal business hours, reasonable access to all relevant, non-attorney
privileged and non-confidential 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 Servicer, the Trustee, the Fiscal
Agent, the Operating Adviser, any Placement Agent or any Underwriter or any
Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent of providing access or copies (including electronic
or digital copies) of any such information requested in accordance with the
preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, the Placement Agents, the
Underwriters, each Rating Agency, the Special Servicer, the
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Depositor, and solely as with respect to any A/B Mortgage Loan, the holder of
the B Note and solely as with respect to any Loan Pair, the holder of the
Serviced Companion Mortgage Loan, originals or copies of, among other things,
any Phase I Environmental Report or engineering report prepared or appraisals
performed in respect of each Mortgaged Property provided, however, that the
Paying Agent shall be permitted to require payment by the requesting party
(other than either Rating Agency 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.
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SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool and the Excess Interest Grantor Trust under the Code, REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Paying Agent shall provide or cause to be provided (i)
to the United States Treasury or other Persons (including, but not limited to,
the Transferor of a Class R-I, Class R-II or Class R-III Certificate, to a
Disqualified Organization or to an agent that has acquired a Class R-I, Class
R-II or Class R-III Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Class R-I, Class R-II or Class R-III Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions; in the case of (i),
subject to reimbursement of expenses relating thereto in accordance with Section
7.12. 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 and
the Excess Interest Grantor Trust as the Paying Agent may reasonably request
from time to time. The Special Servicer is required to provide to the applicable
Master Servicer all information in its possession with respect to the Specially
Serviced Mortgage Loans in order for such Master Servicer to comply with its
obligations under this Section 5.5. The Paying Agent shall be entitled to
conclusively rely on any such information provided to it by the Master Servicers
or the Special Servicer and shall have no obligation to verify any such
information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Fiscal Agent and Trustee any unpaid fees, expenses and other
amounts then required to be paid pursuant to this Agreement, and then, to the
Paying Agent, any unpaid fees, expenses and other amounts then required to be
paid pursuant to this Agreement, and then at the written direction of the
applicable Master Servicer, withdraw from the Distribution Account and pay to
such Master Servicer and Special Servicer any unpaid servicing compensation or
other amounts currently required to be paid pursuant to this Agreement (to the
extent not previously retained or withdrawn by such Master Servicer from the
applicable Certificate Account), and (2) second, make distributions in the
manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final
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distribution in respect of any Certificate shall be made only upon presentation
and surrender of such Certificate at such location specified by the Paying Agent
in a notice delivered to Certificateholders pursuant to Section 10.2(a). If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day without compensation for such delay. All distributions or
allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular
Interests, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest (other than any Excess 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, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds with respect to each Mortgage Loan
(other than Excess Interest) or related REO Property, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests have been
reduced to zero, and 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 (other than Excess Interest) 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
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; 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-
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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, to REMIC II Regular Interest A-1A-7; 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 A-2 Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-2A; second, to REMIC II Regular Interest A-2B; and third, to
REMIC II Regular Interest A-2C; in each case, until their respective Certificate
Balances are reduced to zero;
(iv) 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; third, to
REMIC II Regular Interest A-4A-3; fourth, to REMIC II Regular Interest A-4A-4;
and fifth, to REMIC II Regular Interest A-4A-5; in each case, until their
respective Certificate Balances are reduced to zero;
(v) 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; and second, to REMIC II Regular Interest D-2; in each
case, until their respective Certificate Balances are reduced to zero;
(vi) with respect to the Class E Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest E-1; and second, to REMIC II Regular Interest E-2; in each
case, until their respective Certificate Balances are reduced to zero;
(vii) 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;
(viii) 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;
(ix) with respect to the Class J Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest J-1; and second, to REMIC II Regular Interest J-2; in each
case, until their respective Certificate Balances are reduced to zero; and
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(x) with respect to the Class K Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest K-1; and second, to REMIC II Regular Interest K-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 definitions of "Class X-1 Strip Rate" and "Class X-2 Strip
Rate" and distributed pursuant to Section 6.5 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 of reimbursements of
Realized Losses made in respect of any Class of Principal Balance Certificates
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 deemed to have been distributed among two or more Corresponding REMIC II
Regular Interests that correspond to a Class of Principal Balance Certificates
in the reverse order of the priority set forth in Section 6.6(d) for allocation
for Realized Losses, up to the amount of Realized Losses previously allocated to
such REMIC II Regular Interest. 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 AND EXCESS INTEREST GRANTOR TRUST.
(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 any
Excess Interest, which shall be distributed in accordance with Section 6.5(c))
and Excess Liquidation Proceeds in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class A-AB
Certificates, Class A-3 Certificates, Class A-4A Certificates, Class A-4B
Certificates, Class X-1 Certificates and Class X-2 Certificates, concurrently,
(A) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-AB Certificates, Class A-3 Certificates, Class
A-4 Certificates, the Distributable Certificate Interest in respect of
each 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 payable in respect of each such class; provided that interest
distributed to the Class A-2 Certificates will be applied first to
Class A-2A up to its interest entitlements and then to Class A-2B up
to its interest entitlements, provided further that interest
distributed to the Class A-4 Certificates
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will be applied first to Class A-4A up to its interest entitlements
and then to Class A-4B up to its interest entitlements;
(B) to the Holders of the Class A-1A Certificates, the
Distributable Certificate Interest 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 and Class X-2 Certificates,
the Distributable Certificate Interest in respect of each such class
for such Distribution Date, pro rata in proportion to the
Distributable Certificate Interest 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
Senior Certificates or the Class X Certificates on such Distribution Date as
described above, the Available Distribution Amount will be allocated among all
those classes 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 Class A-2 Certificates will be applied
first to Class A-2A up to its interest entitlements and then to Class A-2B up to
its interest entitlements, provided further that interest distributed to the
Class A-4 Certificates will be applied first to Class A-4A up to its interest
entitlements and then to Class A-4B up to its interest entitlements;
(ii) concurrently:
(A) to the Holders of the Class A-1, Class A-2, Class A-AB, Class
A-3, and Class A-4 Certificates: 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 have 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, 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 have 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, third, upon payment in full of the aggregate
Certificate Balance of the Class A-1 Certificates,
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to the Holders of the Class A-2A Certificates, the Loan Group 1
Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-1A Certificates have been
reduced to zero, the Loan Group 2 Principal Distribution Amount, until
the aggregate Certificate Balance of the Class A-2A 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, fourth, upon payment in full of the aggregate
Certificate Balance of the Class A-2A Certificates, to the Holders of
the Class A-2B Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates have been reduced to zero, the Loan
Group 2 Principal Distribution Amount, until the aggregate Certificate
Balance of the Class A-2B 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-2A Certificates and (solely with respect to
the Loan Group 2 Principal Distribution Amount) Class A-1A
Certificates, fifth, upon payment in full of the aggregate Certificate
Balance of the Class A-2B Certificates, to the Holders of the Class
A-3 Certificates, the Loan Group 1 Principal Distribution Amount for
such Distribution Date and, after the Certificate Balance of the Class
A-1A Certificates have been reduced to zero, the Loan Group 2
Principal Distribution Amount, until the aggregate Certificate Balance
of the Class A-3 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-2A Certificates, Class A-2B Certificates and
(solely with respect to the Loan Group 2 Principal Distribution
Amount) Class A-1A Certificates, sixth, upon payment in full of the
aggregate Certificate Balance of the Class A-3 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 have 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-2A
Certificates, Class A-2B Certificates, Class A-3 Certificates and
(solely with respect to the Loan Group 2 Principal Distribution
Amount) Class A-1A Certificates, seventh, upon payment in full of the
aggregate Certificate Balance of the Class A-AB and Class A-3
Certificates, to the Holders of the Class A-4A Certificates, the Loan
Group 1
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Principal Distribution Amount for such Distribution Date and, after
the Certificate Balance of the Class A-1A Certificates have 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-2A Certificates, Class A-2B Certificates, Class
A-3 Certificates and (solely with respect to the Loan Group 2
Principal Distribution Amount) Class A-1A Certificates, 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 have 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-2A Certificates, Class A-2B Certificates, Class
A-3 Certificates, 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-4 Certificates have 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, Class
A-1, Class A-2, Class A-3 and Class A-4 Certificates;
(iii) to the Holders of the Class A Senior Certificates, Class
X-1 Certificates and Class X-2 Certificates, pro rata in proportion to their
respective entitlements to reimbursement described in this clause (treating
principal and interest losses separately), to reimburse any Realized Losses
previously allocated thereto and not previously fully reimbursed (in the case of
the Class X Certificates, insofar as Realized Losses have resulted in short
falls in the amount of interest distributed other than by reason of a reduction
of the Notional Amount), 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-2 Certificates will be allocated first to the Class A-2A
Certificates until such Realized Losses are reimbursed, together with all
interest at the applicable Pass-Through Rate, and then to the Class A-2B
Certificates, provided further, 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 are reimbursed, together with all interest at the applicable
Pass-Through Rate, and then to the Class A-4B Certificates;
(iv) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
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(v) upon payment in full of the Certificate Balance of the Class
A-4B and Class A-1A Certificates, to the holders of the Class A-J Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions 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 thereof 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 thereof 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 thereof 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;
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(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 thereof 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 thereof 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 thereof 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 thereof 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;
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(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 thereof 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 thereof 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 thereof 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 thereof 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;
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(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 thereof 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 thereof 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 thereof 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;
(xlix) to the Holders of the Class Q Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) upon payment in full of the Certificate Balance of the Class
P Certificates, to the Holders of the Class Q Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class Q
Certificates has been reduced to zero;
(li) to the Holders of the Class Q 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;
(lii) to the Holders of the Class S Certificates, Distributable
Certificate Interest for such Distribution Date;
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(liii) upon payment in full of the Certificate Balance of the
Class Q Certificates, to the Holders of the Class S Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class S
Certificates has been reduced to zero;
(liv) to the Holders of the Class S 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;
(lv) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC Regular Certificates have
been reduced to zero, and Realized Losses previously allocated to each Holder
have been reimbursed to the Holders of the REMIC Regular Certificates, any
amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to the
Certificate Balances of all the Classes of Subordinate Certificates, the
Principal Distribution Amount will be distributed, first, to the Holders of the
Class A-1, Class A-1A, Class A-2, Class A-AB, Class A-3 and Class A-4
Certificates, pro rata, based on their respective Certificate Balances, in
reduction of their respective Certificate Balances, until the Certificate
Balance of each such Class is reduced to zero, provided that the Principal
Distribution Amounts distributed to the Class A-2 Certificates will be applied
first to the Class A-2A Certificates until the aggregate Certificate Balance of
such Class is reduced to zero and then to the Class A-2B Certificates until the
aggregate Certificate Balance of such Class is reduced to zero, provided
further, that, the Principal Distribution Amounts distributed to 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, second, to the Holders of the Class A-1, Class A-1A, Class
A-2, Class A-AB, Class A-3 and Class A-4 Certificates, pro rata, based on the
respective amounts of unreimbursed Realized Losses previously allocated to each
such Class, plus one month's interest on such Realized Losses at the applicable
Pass-Through Rate, provided that such amounts with respect to the Class A-2
Certificates will be allocated first to the Class A-2A Certificates until such
unreimbursed losses are reimbursed, together with all applicable interest at the
applicable Pass-Through Rate, and then to the Class A-2B Certificates, provided
further, 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 all applicable interest at the applicable
Pass-Through Rate, and then to the Class A-4B Certificates. A similar rule shall
apply to the distribution of the Principal Distribution Amount to REMIC II
Regular Interests X-0-0, X-0-0, X-0-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0,
A-1A-6, A-1A-7, A-1A-8, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X, X-XX, X-0, X-0X-0,
X-0X-0, X-0X-0, X-0X-0, X-0X-0 xxx X-0X; provided that sequential payments shall
be made to the REMIC II Regular Interests as set forth in clauses (i) through
(x) of Section 6.3(a).
(b) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
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(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class T 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 Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances and treated as
Realized Principal Losses to the extent so allocated (and shall proportionately
reduce the Certificate Balance of each REMIC I Regular Interest) after making
all other allocations for such Distribution Date.
(b) In the event that the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, determines that an Advance (including
an Unliquidated Advance) previously made by it 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),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from such Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to
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reduce the amount of interest paid on each REMIC I Regular Interest on such
Distribution Date in proportion to Distributable Certificate Interest otherwise
payable thereon, and shall result in Unpaid Interest on each such REMIC I
Regular Interest;
(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well
as Advance Interest owing to the applicable Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent with respect to Advances shall be
treated as Expense Losses and allocated in accordance with Section 6.6(a)(iii)
above.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the applicable Master
Servicer previously had withdrawn amounts from the applicable Certificate
Account following a determination that Advances (or Unliquidated Advances)
previously made were Nonrecoverable Advances, or at such other time as any other
Realized Loss shall occur with respect to any such Mortgage Loan, such Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.6(b)(ii) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.6(b)(i) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.6(b)(i) above;
(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the applicable Certificate
Account that are treated as Recoveries of principal on the Mortgage Loan shall
be applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Realized Principal Losses previously allocated
thereto are reduced to zero and thereafter to make payments of principal to the
Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(ii) above, in proportion
to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the applicable Certificate
Account that are
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treated as Recoveries of interest on the Mortgage Loan shall be applied first,
to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.6(b)(i)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.6(b)(i) above; and
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the applicable Certificate Account
that is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with respect
to which an Expense Loss was created pursuant to Section 6.6(b)(iii) above in
proportion to the amount of the Expense Loss allocated thereto pursuant to
Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Interests for such Distribution Date (or for prior Distribution Dates,
to the extent not previously allocated) shall be allocated to the Corresponding
REMIC II Regular Interests in the amounts and in the manner as are allocated to
the REMIC II Regular Interests related thereto pursuant to Section 6.6(f);
provided, however, that Realized Losses shall be allocated among two or more
Corresponding REMIC II Regular Interests that correspond to a Class of Principal
Balance Certificates sequentially in alphabetical and numerical order. Realized
Losses allocated to the Class X 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-2A-1, REMIC II
Regular Interest A-2A-2, REMIC II Regular Interest A-2A-3, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-AB, REMIC II Regular Interest A-3,
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-4A-4, REMIC II Regular
Interest A-4A-5, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J,
REMIC II Regular Interest B, REMIC II Regular Interest C, REMIC II Regular
Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E-1,
REMIC II Regular Interest E-2, 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-1, REMIC II Regular
Interest J-2, REMIC II Regular Interest K-1, REMIC II Regular Interest K-2,
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, REMIC II
Regular Interest Q and REMIC II Regular Interest S which reduction shall be
allocated pro rata based on the product of the Certificate Balance of such REMIC
II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2
Strip Rate (if any) applicable to the Class of Certificates relating to such
REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not
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previously allocated) shall be allocated to the REMIC III Regular Interests in
Reverse Sequential Order, in each case reducing (A) first, the Certificate
Balance of such Class until such Certificate Balance is reduced to zero (in the
case of the REMIC III Regular Interests other than the Class X Certificates);
(B) second, Unpaid Interest owing to such Class to the extent thereof and (C)
third, Distributable Certificate Interest owing to such Class, provided, that
such reductions shall be allocated among the Class A-1 Certificates, Class A-1A
Certificates, Class A-2A Certificates, Class A-2B Certificates, Class A-AB
Certificates, Class A-3 Certificates, Class A-4A Certificates, Class A-4B
Certificates, Class X-1 Certificates and Class X-2 Certificates, pro rata, based
upon their outstanding Certificate Balances or accrued interest, as the case may
be, provided further that Realized Losses allocated to the Class A-2
Certificates shall be allocated first to the Class A-2B Certificates and then to
the Class A-2A Certificates, provided further that Realized Losses allocated to
the Class A-4 Certificates shall be allocated first to the Class A-4B
Certificates and then to the Class A-4A Certificates and provided further still,
that Realized Losses shall not reduce the Aggregate Certificate Balance of the
REMIC III Regular Interests below the sum of the Aggregate Certificate Balances
of the REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests shall be allocated to each Class of Certificates,
pro rata, in proportion to the amount of Accrued Certificate Interest payable to
such Class of Certificates on such Distribution Date, in each case reducing
interest otherwise payable thereon. The amount of Net Aggregate Prepayment
Interest Shortfalls allocated to a Class of Certificates pursuant to the
preceding sentence shall reduce the Distributable Certificate Interest for such
Class for such Distribution Date. No Prepayment Interest Shortfall with respect
to a Serviced Companion Mortgage Loan or a B Note shall be allocated to any
Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the applicable Master Servicer shall be adjusted as provided in
Section 8.10(c) herein. Any amount retained by REMIC I as a result of a
reduction of the Master Servicing Fee shall be treated as interest collected
with respect to the prepaid Mortgage Loans with respect to which the Master
Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan, Loan
Pair or A/B Mortgage Loan, if the Principal Balance of such Mortgage Loan, Loan
Pair or A/B Mortgage Loan exceeds $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such
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Mortgage Loan, Loan Pair or A/B Mortgage Loan becomes a Required Appraisal Loan;
provided that if the Special Servicer had completed or obtained an Appraisal or
internal valuation within the immediately prior 12 months, the Special Servicer
may rely on such Appraisal or internal valuation and shall have no duty to
prepare a new Appraisal or internal valuation, unless such reliance would not be
in accordance with the Servicing Standard; provided, further, that if the
Special Servicer is required to obtain an Appraisal of a Mortgaged Property
after receipt of the notice described in clause (ii) of the definition of
Appraisal Event, such Appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
60 days after receipt of such notice. Notwithstanding the foregoing, an
Appraisal shall not be required so long as a guaranty or surety bond that is
rated at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization, or debt service reserve or a letter of credit is available
and has the ability to pay off the then outstanding Principal Balance of the
Mortgage Loan in full, except to the extent that the Special Servicer, in
accordance with the Servicing Standard, determines that obtaining an Appraisal
is in the best interests of the Certificateholders. Such Appraisal or valuation
shall be conducted in accordance with the definition of "market value" as set
forth in 12 C.F.R. Section 225.62 and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal or valuation, if not performed by the Special Servicer, shall be
an expense of the Trust (and any related B Note) and may be paid from REO Income
or, to the extent collections from such related Mortgage Loan, B Note, Loan Pair
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 the Special Servicer or by the Special Servicer pursuant to Section
4.2 in which event it shall be treated as a Servicing Advance. The applicable
Master Servicer, based on the Appraisal or internal valuation provided to it by
the Special Servicer, shall calculate any Appraisal Reduction. The applicable
Master Servicer shall calculate or recalculate the Appraisal Reduction for any
Mortgage Loan, B Note and Loan Pair based on updated Appraisals or internal
valuations provided from time to time to it by the Special Servicer and report
such amount to the Trustee. Notwithstanding the foregoing, the terms of this
Section 6.9 shall not be applicable to any Non-Serviced Mortgage Loan if the
applicable Non-Serviced Mortgage Loan Special Servicer shall have performed such
obligations with respect to such Mortgage Loan pursuant to the terms of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Paying Agent on
behalf of the Trustee shall comply with all federal withholding requirements
with respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the Paying Agent withholds any amount from payments made to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate to such Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note or Serviced Companion Mortgage
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the holder of the
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related Serviced Companion Mortgage Loan, as applicable) during any particular
Collection Period will be deemed distributed to the Trustee by the Paying Agent
on the following Distribution Date as follows: (i) first, the Paying Agent shall
be deemed to distribute to the Trustee, as holder of the REMIC I Regular
Interest to which such Mortgage Loan relates, any Prepayment Premiums collected
on or with respect to such Mortgage Loan; and (ii) second, the Paying Agent
shall be deemed to distribute to the Trustee, as holder of the REMIC II Regular
Interests, any Prepayment Premiums deemed distributed to the REMIC I Regular
Interests, and shall be deemed to distribute such Prepayment Premiums to the
REMIC II Regular Interest then entitled to distributions of principal from the
Principal Distribution Amount (or, if more than one Class of REMIC II Regular
Interests is then entitled to distributions of principal from the Principal
Distribution Amount, such Prepayment Premiums shall be deemed distributed among
such Classes pro rata in accordance with the relevant amounts of entitlements to
distributions of principal). Following such deemed distributions, in respect of
any Prepayment Premiums collected in respect of each Mortgage Loan included in
Loan Group 1 during the related Collection Period, the Holders of the respective
Classes of Principal Balance Certificates, other than the Class A-1A, Class L,
Class M, Class N, Class O, Class P, Class Q and Class S Certificates, then
entitled to distributions of principal from the Principal Distribution Amount
for such Distribution Date, will be entitled to, and the Paying Agent on behalf
of the Trustee will pay to such Holder(s), an amount equal to, in the case of
each such Class, the product of (a) a fraction, the numerator of which is the
amount distributed as principal to the holders of that Class on that
Distribution Date, and the denominator of which is the total amount distributed
as principal to the holders of all Classes of Principal Balance Certificates,
other than the Class A-1A, Class L, Class M, Class N, Class O, Class P, Class Q
and Class S Certificates, on that Distribution Date, (b) the Base Interest
Fraction for the related Principal Prepayment and that Class of Certificates and
(c) the aggregate amount of Prepayment Premiums collected during the related
Collection Period. Following such deemed distributions, in respect of any
Prepayment Premiums collected in respect of each Mortgage Loan included in Loan
Group 2 during the related Collection Period, the Holders of the Class A-1A
Certificates, then entitled to distributions of principal from the Principal
Distribution Amount for such Distribution Date, will be entitled to, and the
Paying Agent on behalf of the Trustee will pay to such Holder(s), an amount
equal to, in the case of each such Class, the product of (a) a fraction, the
numerator of which is the amount distributed as principal to the holders of that
Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the holders of the Class A-1A Certificates on
that Distribution Date, (b) the Base Interest Fraction for the related Principal
Prepayment and that Class of Certificates and (c) the aggregate amount of
Prepayment Premiums collected during the related Collection Period. Any portion
of such Prepayment Premium that is not so distributed to the Holders of such
Principal Balance Certificates will be distributed to the Holders of the Class X
Certificates. On any Distribution Date on or before the Distribution Date in
August 2010, 80% of such Prepayment Premiums remaining after those distributions
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 Premiums
remaining after those distributions 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 August 2010, any of such Prepayment Premiums
remaining after those distributions to the Holders of such Principal Balance
Certificates will be distributed to the holders of the Class X-1 Certificates.
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ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND THE
LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the continuation of any Event
of Default hereunder, the Trustee and Fiscal Agent and the Paying Agent each
shall use the same degree of care and skill in its exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by a Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee, the Fiscal Agent or
the Paying Agent shall request the providing party to correct the instrument and
if not so corrected, the Paying Agent shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying Agent nor any
of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Fiscal Agent, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
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(ii) no provision of this Agreement shall require the Trustee,
the Fiscal Agent or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of a Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent nor the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the Paying
Agent, as applicable in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust, and
the Trustee, the Paying Agent and the Fiscal Agent shall be entitled to be
reimbursed therefor from the applicable Certificate Account pursuant to Section
5.2(a)(vi); and
(vi) neither the Trustee, the Fiscal Agent nor the Paying Agent
shall be charged with knowledge of any failure by a Master Servicer or the
Special Servicer or by each other to comply with its obligations under this
Agreement or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Fiscal Agent or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, obtains actual knowledge of such failure.
(d) For so long as the Certificates are listed on the Luxembourg Stock
Exchange, the Depositor shall cause the continuing obligations under the listing
rules for the Luxembourg Stock Exchange to be complied with in respect of the
Certificates. The Trustee, the Fiscal Agent and the Paying Agent shall not be
liable for a failure in compliance with such continuing obligations under the
listing rules of the Luxembourg Stock Exchange if such failure is caused by the
negligence or willful misconduct of the Luxembourg Paying Agent.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each may
request, and may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
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(ii) the Trustee, the Fiscal Agent and the Paying Agent each may
consult with counsel and the advice of such counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this Agreement
or to institute, conduct or defend any litigation hereunder or relating hereto
or make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Certificate Balance of the Certificates then
outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent each may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, which agents or attorneys
shall have any or all of the rights, powers, duties and obligations of the
Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of a
Master Servicer, the Special Servicer, the Depositor or the actions or omissions
of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be liable for any loss on any investment of funds pursuant to this
Agreement;
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(ix) unless otherwise specifically required by law, neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall be required to post any
surety or bond of any kind in connection with the execution or performance of
its duties hereunder; and
(x) except as specifically provided hereunder in connection with
the performance of its specific duties, neither the Trustee nor the Fiscal Agent
nor the Paying Agent shall be responsible for any act or omission of a Master
Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only if such taxes arise out of a breach by the Paying Agent of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT
LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal
Agent and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee,
the Fiscal Agent and the Paying Agent represents that, assuming due execution
and delivery by the other parties hereto, this Agreement
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has been duly authorized, executed and delivered by it and constitutes its valid
and binding obligation, enforceable against it in accordance with its terms
except that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law and
(ii) the Trustee represents that, assuming due execution and delivery by the
other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law. None of the Trustee, the Fiscal Agent or the
Paying Agent shall be accountable for the use or application by the Depositor or
a Master Servicer or the Special Servicer or by each other of any of the
Certificates or any of the proceeds of such Certificates, or for the use or
application by the Depositor or the applicable Master Servicer or the Special
Servicer or by each other of funds paid in consideration of the assignment of
the Mortgage Loans to the Trust or deposited into the Distribution Account or
any other fund or account maintained with respect to the Certificates or any
account maintained pursuant to this Agreement or for investment of any such
amounts. No recourse shall be had for any claim based on any provisions of this
Agreement, the Private Placement Memorandum, the Preliminary Prospectus
Supplement, the Final Prospectus Supplement, the Prospectus or the Certificates
(except with respect to the Trustee and Fiscal Agent to the extent of
information furnished by the Trustee and the Fiscal Agent under the caption
entitled "DESCRIPTION OF THE OFFERED CERTIFICATES - The Trustee and the Fiscal
Agent" and with respect to the Paying Agent, to the extent of information
furnished by the Paying Agent under the caption "DESCRIPTION OF THE OFFERED
CERTIFICATES - The Paying Agent, Certificate Registrar and Authenticating Agent"
each in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement), the Mortgage Loans or the assignment thereof against the Trustee,
the Fiscal Agent or the Paying Agent in such Person's individual capacity and
any such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided herein. Neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall be liable for any action or failure of any
action by the Depositor or a Master Servicer or the Special Servicer or by each
other hereunder. Neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall at any time have any responsibility or liability for or with respect to
the legality, validity or enforceability of the Mortgages or the Mortgage Loans,
or the perfection and priority of the Mortgages or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust or
its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation, the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon; the validity of the assignment of the Mortgage Loans
to the Trust or of any intervening assignment; the completeness of the Mortgage
Loans; the performance or enforcement of the Mortgage Loans (other than if the
Trustee shall assume the duties of the applicable Master Servicer); the
compliance by the Depositor, each Seller, the Mortgagor or a Master Servicer or
the Special Servicer or by each other with any warranty or representation made
under this Agreement or in any related document or the accuracy of any such
warranty or representation made under this Agreement or in any related document
prior to the receipt by a Responsible Officer of the Trustee of notice or other
discovery of any non-
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compliance therewith or any breach thereof; any investment of monies by or at
the direction of a Master Servicer or the Special Servicer or any loss resulting
therefrom; the failure of a Master Servicer or any Sub-Servicer or the Special
Servicer to act or perform any duties required of it on behalf of the Trustee
hereunder; or any action by the Trustee taken at the instruction of a Master
Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT.
(a) The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
short-term debt obligations are at all times rated not less than "A-1" by S&P
and not less than "R-1(middle)" by DBRS or, if not rated by DBRS, an equivalent
rating such as that listed above by at least one nationally recognized
statistical rating organizations, and whose long-term senior unsecured debt, or
that of its fiscal agent, if applicable, is rated not less than "AA-" by Fitch
(or "A+" by Fitch if the Trustee's short-term unsecured debt is rated at least
"F-1" by Fitch), "A+" by S&P and "AA(low)" by DBRS (or, if not rated by DBRS, an
equivalent rating (such as those listed above for Fitch and S&P) by at least two
nationally recognized statistical rating organizations), provided, that if the
Fiscal Agent is rated at least "AA-" by Fitch (or "A+" by Fitch if the Fiscal
Agent's short-term unsecured debt is rated at least "F-1" by Fitch), the Fiscal
Agent also has a short-term rating of at least "F-1" by Fitch, "AA-" by S&P (or
"A+" by S&P if the Fiscal Agent's short-term unsecured debt is rated at least
"A-1" by S&P) and "AA(low)" by DBRS (or, if not rated by DBRS, an equivalent
rating (such as those listed above for Fitch and S&P) by at least two nationally
recognized statistical rating organizations), then the Trustee must be rated not
less than "A-" by Fitch, "A-" by S&P and "A(low)" by DBRS, or, if not rated by
DBRS, an equivalent rating such as those listed above by at least two nationally
recognized statistical rating organizations, or as otherwise acceptable to the
Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Fiscal Agent shall resign
immediately in the manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
its long-term unsecured debt rated at least "A" by Fitch, "A" by S&P and "A" by
DBRS, unless and to the extent Rating Agency Confirmation is obtained.
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SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT
OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicers and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or the Fiscal Agent, one copy to the
successor trustee and one copy to each of the Master Servicers, the Paying Agent
and the Rating Agencies. If no successor trustee, fiscal agent or paying agent
shall have been so appointed, as the case may be, and shall have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee, the Fiscal Agent or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee, fiscal agent or paying agent, as the case may be. It shall be a
condition to the appointment of a successor trustee or fiscal agent that such
entity satisfies the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied the
ratings required by clause (iii) of Section 7.5, then the Depositor may remove
such Trustee and appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicers and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii), (iv) and (v)
above, the Trustee shall bear all such costs of transfer. Such succession shall
take effect after a successor trustee has been appointed. In the case of the
removal of the initial Trustee, the Depositor shall also remove the Fiscal Agent
in accordance with Section 7.6(c).
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(a) and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice of
termination to the Fiscal Agent (which notice shall specify the reason for such
termination) and remove such Fiscal Agent and appoint a successor Fiscal Agent
by written instrument, one copy of which instrument shall be delivered to the
Fiscal Agent so removed, one
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copy to the successor Fiscal Agent, and one copy to each of the Trustee, the
Master Servicers and the Rating Agencies. In all such cases, the Fiscal Agent
shall bear all costs of transfer to a successor Fiscal Agent, such succession
only to take effect after a successor Fiscal Agent has been appointed. In the
case of the initial Fiscal Agent, the Depositor must also remove the Trustee in
accordance with Section 7.6(b). On the date specified in a written notice of
termination given to the Fiscal Agent pursuant to this Section 7.6(c), all
authority, power and right of the Fiscal Agent under this Agreement, whether
with respect to the Mortgage Loans or otherwise, shall terminate and a successor
Fiscal Agent, if necessary, shall be appointed by the Depositor; provided that
the successor Fiscal Agent meets the eligibility requirements set forth in
Section 7.5. The Fiscal Agent agrees to cooperate with the Depositor in
effecting the termination of the Fiscal Agent's responsibilities and rights
hereunder as Fiscal Agent. Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent such
reimbursement relates to the period up to and including the date on which the
Fiscal Agent's termination is effective. The Fiscal Agent shall be reimbursed
for all amounts owed to it hereunder on or prior to the effective date of its
termination from amounts on deposit in a Certificate Account.
(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by the Rating Agencies, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master
Servicers, the Operating Adviser and the Rating Agencies. In all such cases, the
Paying Agent shall bear all costs of transfer to a successor Paying Agent, such
succession only to take effect after a successor Paying Agent has been
appointed.
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may for cause upon 30 days' written notice
to the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee, Fiscal Agent or Paying Agent,
as the case may be, in accordance with this Section.
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(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee, fiscal
agent or paying agent pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, fiscal
agent or paying agent, as the case may be, as provided in Section 7.7. Upon any
succession of the Trustee, the Fiscal Agent or the Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any action
or omission of any successor Trustee, Fiscal Agent or Paying Agent, as the case
may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, Fiscal Agent or Paying Agent,
as the case may be, shall become effective and such successor Trustee, Fiscal
Agent or Paying Agent, as the case may be, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all records
or copies thereof maintained by the predecessor Trustee, Fiscal Agent or Paying
Agent in the administration hereof as may be reasonably requested by the
successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee, Fiscal Agent
or Paying Agent shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee, Fiscal Agent or Paying Agent, as the case may
be, all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal
Agent or Paying Agent as provided in this Section, the successor Trustee, Fiscal
Agent or Paying Agent shall mail notice of the succession of such Trustee,
Fiscal Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating
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Agencies. The expenses of such mailing shall be borne by the successor Trustee,
Fiscal Agent or Paying Agent. If the successor Trustee, Fiscal Agent or Paying
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, Fiscal Agent or Paying Agent, each Master Servicer
shall cause such notice to be mailed at the expense of the successor Trustee,
Fiscal Agent or Paying Agent, as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided, further, that, in addition to the foregoing with
respect to the Fiscal Agent (i) the successor to the Fiscal Agent or resulting
Person shall have a net worth of not less than $100,000,000, (ii) such successor
or resulting Person shall be satisfactory to the Trustee, (iii) such successor
or resulting Person shall execute and deliver to the Trustee an agreement, in
form and substance satisfactory to the Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by the Fiscal Agent under this
Agreement from and after the date of such agreement, and (iv) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
7.8 have been completed and such action is permitted by and complies with the
terms of this Section 7.8.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicers or Special Servicer that such
separate trustee or co-trustee is necessary or advisable) under the laws of any
state in which a property securing a Mortgage Loan is located or for the purpose
of otherwise conforming to any legal requirement, restriction or condition in
any state in which a property securing a Mortgage Loan is located or in any
state in which any portion of the Trust is located. The separate trustees,
co-trustees, or custodians so appointed shall be trustees or custodians for the
benefit of all the Certificateholders, shall have such powers, rights and
remedies as shall be specified in the instrument of appointment and shall be
deemed to have accepted the provisions of this Agreement; provided that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee; provided, further that the Trustee shall be liable for the actions
of any co-trustee or separate trustee appointed by it and shall have no
liability for the actions of any co-trustee or separate
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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
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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
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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 TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their respective part, arising out of, or in connection
with this Agreement, the Certificates and the acceptance or administration of
the trusts or duties created hereunder (including, without limitation, any
unanticipated loss, liability or expense incurred in connection with any action
or inaction of a Master Servicer, the Special Servicer or the Depositor or of
each other such Person hereunder but only to the extent the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such third
party pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Fiscal Agent, the
Certificate Registrar and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Fiscal
Agent, the Certificate Registrar and the Paying Agent of the reports required to
be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, shall
have given the Depositor, the Master Servicers, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a Responsible
Officer of the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicers,
the Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's, Certificate Registrar's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's defense of
such claim on behalf of the Trust is materially prejudiced thereby;
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(ii) while maintaining control over its own defense, the Trustee,
the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may
be, shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be,
their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, furnished to
the Depositor by or on behalf of such person specifically for inclusion therein.
It is hereby expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is set forth in the case of the Trustee in the second,
fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent" and in the case of the Paying
Agent, the third and fourth sentences under the "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Paying Agent, Certificate Registrar and the Authenticating
Agent". The Trustee, the Fiscal Agent, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its
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directors, officers, employees, agents or Controlling Person to indemnification
hereunder, whereupon the Depositor shall assume the defense of any such claim
(with counsel reasonably satisfactory to such person) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Depositor shall not affect
any rights the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent. The Depositor shall not be indemnified by the
Trust for any expenses incurred by the Depositor arising from any violation or
alleged violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT, THE
PAYING AGENT AND THE SERVICER REPORT ADMINISTRATOR. The Trustee shall be
entitled to receive the Trustee Fee (other than the portion thereof constituting
the Paying Agent Fee), the Paying Agent shall be entitled to receive the Paying
Agent Fee, pursuant to Section 5.3(b)(ii) (which shall not be limited by any
provision of law with respect to the compensation of a trustee of an express
trust) and the Servicer Report Administrator shall be entitled to receive the
Servicer Report Administrator Fees, 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, the Paying
Agent and the Servicer Report Administrator. The Trustee, the Fiscal Agent and
the Paying Agent shall also be entitled to recover from the Trust all reasonable
unanticipated expenses and disbursements incurred or made by the Trustee, the
Fiscal Agent and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and
except any such expense, disbursement or advance as may arise from the
negligence or bad faith of such Person or which is the responsibility of the
Holders of the Certificates hereunder. The provisions of this Section 7.12 shall
survive any termination of this Agreement and the resignation or removal of the
Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS
Except as otherwise expressly provided in this Agreement, the Trustee
and the Paying Agent may demand payment or delivery of, and shall receive and
collect, all money and other property payable to or receivable by the Trustee or
the Paying Agent, as the case may be, pursuant to this Agreement. The Trustee or
the Paying Agent, as the case may be, shall hold all such money and property
received by it as part of the Trust and shall distribute it as provided in this
Agreement. If the Trustee or the Paying Agent, as the case may be, shall not
have timely received amounts to be remitted with respect to the Mortgage Loans
from the applicable Master Servicer, the Trustee or the Paying Agent, as the
case may be, shall request such Master Servicer to make such distribution as
promptly as practicable or legally permitted. If the Trustee or the Paying
Agent, as the case may be, shall subsequently receive any such amount, it may
withdraw such request.
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SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time a Master Servicer is terminated pursuant to
this Agreement, 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). 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 (other than Excess Servicing Fees (subject to Section 8.10(a)) set
forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the applicable Master Servicer hereunder in the assumption of
all of the responsibilities, duties or liabilities of a servicer as a Master
Servicer hereunder. Pending any such appointment, the Trustee shall act as a
Master Servicer as hereinabove provided. Any entity designated by the Trustee as
a successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for a 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 the
applicable 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
applicable 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 applicable Master Servicer to
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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 applicable
Master Servicer as provided herein; such expenses paid by the Trust shall be
deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30 and not otherwise replaced by
the Operating Adviser, the Trustee shall be the successor in all respects to the
Special Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Special Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Special Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Special Servicer contained in this
Agreement or (ii) any obligation incurred by the Special Servicer prior to its
termination or resignation. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Special
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation (other than any Work-Out Fee payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions
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hereunder and the transfer to the Trustee or such successor Special Servicer of
all amounts which shall at the time be or should have been deposited by the
Special Servicer in a Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of a Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to such Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at their
respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will
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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 Fiscal Agent hereby represents and warrants as of the date
hereof that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable
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bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's knowledge,
threatened, against the Fiscal Agent that, either in any one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Fiscal Agent to perform
under the terms of this Agreement.
(c) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and 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 proceedings pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent that,
either in one instance
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or in the aggregate, would draw into question the validity of this Agreement, or
which would be likely to impair materially the ability of the Paying Agent to
perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees,
fiscal agents or paying agents in similar transactions (unless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, self insures as provided
below). In the event that any such Errors and Omissions Insurance Policy or
Fidelity Bond ceases to be in effect, the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, is not less
than "A" as rated by Fitch, if rated by Fitch, "A" as rated by S&P, if rated by
S&P, and "A" as rated by DBRS, if rated by DBRS or, if not rated by DBRS, an
equivalent rating such as those listed above by two nationally recognized
statistical rating organizations, respectively, the Trustee, the Fiscal Agent or
the Paying Agent, as the case may be, may self-insure for the Fidelity Bond and
the Errors and Omissions Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION TO
CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in Luxembourg (the
"Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes
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to cause the Luxembourg Paying Agent to publish all notices to
Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg Paying
Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual Period, the amount of principal and interest distributable on
the related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
(ii) to the Luxembourg Paying Agent on each Distribution Date,
the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any termination of the Trustee or
Paying Agent or appointment of a successor to the Trustee or Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to the
Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to the
Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg Stock
Exchange or any other stock exchange.
SECTION 7.19 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Paying Agent
when due any required Advance for any Mortgage Loan; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
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(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Fiscal Agent or of or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(v) The long-term unsecured debt of the Fiscal Agent is rated
below "AA-" by Fitch (or "A+" by Fitch if the Fiscal Agent's short-term
unsecured debt is rated at least "F-1" by Fitch) or "AA-" by S&P (or "A+" by S&P
if the Fiscal Agent's short-term unsecured debt is rated at least "A-1" by S&P),
unless such other rating shall be acceptable to the Rating Agencies as evidenced
by a Rating Agency Confirmation; or
(vi) With respect to the initial Fiscal Agent, LaSalle Bank
National Association resigns or is removed as Trustee pursuant to Section 7.6
hereof.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, each
Master Servicer shall service and administer the Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan in accordance with the Servicing Standard
and the terms of this Agreement (subject to the servicing of any Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer in accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement). Certain
of the provisions of this Article VIII make explicit reference to their
applicability to Mortgage Loans, any B Note and any Serviced Companion Mortgage
Loan; notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to such B Note and Serviced Companion Mortgage Loan (but any other
terms that are defined in Article I and used in this Article VIII shall be
construed according to such definitions without regard to this sentence).
In connection with such servicing and administration, the applicable
Master Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole (or, in the case of any A/B Mortgage Loan or Loan
Pair, the Certificateholders and the holder of the related B Note and
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Serviced Companion Mortgage Loan, all taken as a collective whole); 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 Special Servicer, in the case of an
event specified in clause (y) of this subclause (b), shall each send a written
notice to the other and to the Trustee and the Paying Agent, the Operating
Adviser, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of a Loan Pair, the holder of the related
Serviced Companion Mortgage Loan, within two Business Days after becoming aware
(x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan
or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the applicable Master Servicer has actual knowledge of any
event giving rise to a claim under an Environmental Insurance Policy, such
Master Servicer shall notify the Special Servicer to such effect and such Master
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of such Environmental Insurance Policy to
make a claim thereunder and achieve the payment of all amounts to which the
Trust is entitled thereunder. 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 Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan, 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).
(e) The parties hereto acknowledge that each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan is subject to the terms and
conditions of the related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loans are subject to the terms and conditions of the related
Intercreditor Agreement, and each such party agrees that the provisions of each
Loan Pair Intercreditor Agreement and Intercreditor Agreement that are required
by their terms to be set forth in this Agreement are hereby incorporated herein.
With respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan and each A/B Mortgage Loan, the Trustee, the Fiscal Agent, the
applicable Master Servicer and the Special Servicer recognize the respective
rights and obligations of the Trust, the holders of each Serviced Companion
Mortgage Loan and the holders of each B Note under the related Loan Pair
Intercreditor Agreement or Intercreditor Agreement, as applicable, including,
with respect to the allocation of collections on or in respect of any Serviced
Pari Passu Mortgage Loan, Serviced Companion Mortgage Loan and any Mortgage Loan
and its related B Note in accordance with the
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related Loan Pair Intercreditor Agreement or Intercreditor Agreement, as
applicable. The applicable Master Servicer shall comply with the applicable
provisions of each Loan Pair Intercreditor Agreement or Intercreditor Agreement,
as applicable, and if any Serviced Pari Passu Mortgage Loan, Serviced Companion
Mortgage Loan or A/B Mortgage Loan are then Specially Serviced Mortgage Loans,
the Special Servicer shall comply with the applicable provisions of the related
Loan Pair Intercreditor Agreement or Intercreditor Agreement, as applicable. The
parties hereto agree that any conflict between the terms of this Agreement and
the terms of any Loan Pair Intercreditor Agreement or Intercreditor Agreement,
as applicable, shall be resolved in favor of the Loan Pair Intercreditor
Agreement or Intercreditor Agreement.
(f) Promptly following the Closing Date, the Trustee shall send
written notice in the form of Exhibit DD (to the extent it has not already
provided such notice) to each Non-Serviced Mortgage Loan Master Servicer,
stating that, as of the Closing Date, the Trustee is the holder of the
applicable Non-Serviced Mortgage Loan, and directing such Non-Serviced Mortgage
Loan Master Servicer to remit to the applicable Master Servicer all amounts
payable to, and directing such Non-Serviced Mortgage Loan Master Servicer to
forward, deliver or otherwise make available, as the case may be, to, such
Master Servicer all reports, statements, documents, communications and other
information that are to be forwarded, delivered or otherwise made available to,
such holder of the applicable Non-Serviced Mortgage Loan under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement and Non-Serviced
Mortgage Loan Intercreditor Agreement.
(g) Each Non-Serviced Mortgage Loan shall be serviced and administered
by the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced
Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY EACH MASTER SERVICER. 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 the
applicable 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
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the long-term rating of the applicable Master Servicer is not in any event less
than "A" as rated by Fitch, "BBB" as rated by S&P, and "A" as rated by DBRS (or,
if not rated by DBRS, an equivalent rating (such as those listed above for Fitch
and S&P) by two nationally recognized statistical rating organizations),
respectively, such Master Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The applicable Master Servicer shall service and administer the
Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article
XII hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note and, in connection
with any Loan Pair, the holder of the Serviced Companion Mortgage Loan) 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, if applicable, the holders of the B Note and Serviced Companion Mortgage
Loan) and the Trustee, documents relating to the management, operation,
maintenance, repair, leasing and marketing of the related Mortgaged Properties,
including agreements and requests by the Mortgagor with respect to modifications
of the standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes, any Serviced Companion Mortgage
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Loan and any B Note under the terms of the Mortgage, including all rights of
consent or approval thereunder, subject to Sections 8.7 and 8.18 of this
Agreement, (J) to enter into lease subordination agreements, non-disturbance and
attornment agreements or other leasing or rental arrangements which may be
requested by the Mortgagor or the Mortgagor's tenants, (K) to join the Mortgagor
in granting, modifying or releasing any easements, covenants, conditions,
restrictions, equitable servitudes, or land use or zoning requirements with
respect to the Mortgaged Properties to the extent such does not adversely affect
the value of the related Mortgage Loan or Mortgaged Property, (L) to execute and
deliver, on behalf of itself, the Trustee, the Trust (and, if applicable, the
holders of the B Note and Serviced Companion Mortgage Loan) or any of them, any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties, and (M) hold in
accordance with the terms of any Mortgage Loan and this Agreement, Defeasance
Collateral. The foregoing clauses (A) through (M) are referred to collectively
as "Master Servicer Consent Matters." Notwithstanding the above, the applicable
Master Servicer shall have no power to (i) waive any Prepayment Premiums or (ii)
consent to any modification of a Money Term of a Mortgage Loan. Nothing
contained in this Agreement shall limit the ability of the applicable Master
Servicer to lend money to (to the extent not secured, in whole or in part, by
any Mortgaged Property), accept deposits from and otherwise generally engage in
any kind of business or dealings with any Mortgagor as though such Master
Servicer was not a party to this Agreement or to the transactions contemplated
hereby; provided, however, that this sentence shall not modify the Servicing
Standard.
(b) The applicable Master Servicer shall not be obligated to service
and administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The applicable
Master Servicer shall be required to make all calculations and prepare all
reports required hereunder with respect to such Specially Serviced Mortgage
Loans (other than calculations and reports expressly required to be made by the
Special Servicer hereunder) as if no Servicing Transfer Event had occurred and
shall continue to collect all Scheduled Payments, make Servicing Advances as set
forth herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. The applicable
Master Servicer shall give notice within three Business Days to the Special
Servicer of any collections it receives from any Specially Serviced Mortgage
Loans, subject to changes agreed upon from time to time by the Special Servicer
and such Master Servicer. The 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
Special Servicer's instructions. Each Mortgage Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The applicable Master Servicer shall not be
required to initiate extraordinary collection procedures or legal proceedings
with respect to any Mortgage Loan or to undertake any pre-foreclosure
procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign each Power of Attorney attached hereto as Exhibit S-1 and Exhibit
S-1A. The applicable Master Servicer shall promptly notify the Trustee of the
execution and delivery of any document on
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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 applicable Master Servicer or the Special Servicer, the
Trustee shall execute and return to such Master Servicer or the Special Servicer
any additional powers of attorney and other documents necessary or appropriate
to enable such Master Servicer and the Special Servicer to service and
administer the Mortgage Loans including, without limitation, documents relating
to the management, operation, maintenance, repair, leasing or marketing of the
Mortgaged Properties. The applicable 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 such Master Servicer. Notwithstanding anything contained herein
to the contrary, neither the applicable Master Servicer nor the Special Servicer
shall without the Trustee's written consent: (i) initiate any action, suit or
proceeding solely under the Trustee's name without indicating such Master
Servicer's or Special Servicer's, as applicable, representative capacity, or
(ii) knowingly take any action that causes the Trustee to be registered to do
business in any state, provided, however, that the preceding clause (i) shall
not apply to the initiation of actions relating to a Mortgage Loan that such
Master Servicer or the Special Servicer, as the case may be, is servicing
pursuant to its respective duties herein (in which case such Master Servicer or
the Special Servicer, as the case may be, shall give three (3) Business Days
prior notice to the Trustee of the initiation of such action). The limitations
of the preceding clause shall not be construed to limit any duty or obligation
imposed on the Trustee under any other provision of this Agreement.
(d) The applicable Master Servicer shall make efforts consistent with
the Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The applicable Master Servicer shall segregate and hold all funds
collected and received pursuant to any Mortgage Loan (other than any
Non-Serviced Mortgage Loan) constituting Escrow Amounts separate and apart from
any of its own funds and general assets and shall establish and maintain one or
more segregated custodial accounts (each, an "Escrow Account") into which all
Escrow Amounts shall be deposited within one (1) Business Day after receipt.
Each Escrow Account shall be an Eligible Account, except with respect to
Mortgage Loans identified on Schedule VI for which Escrow Accounts shall be
transferred to Eligible Accounts at the earliest date permitted under the
related Mortgage Loan documents. The applicable Master Servicer shall also
deposit into each Escrow Account any amounts representing losses on Eligible
Investments pursuant to the immediately succeeding paragraph and any Insurance
Proceeds or Liquidation Proceeds which are required to be applied to the
restoration or repair of any Mortgaged Property pursuant to the related Mortgage
Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to a Certificate Account (or any
sub-account thereof) to reimburse the applicable Master Servicer for any Advance
(or the Trust for any
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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 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 sentence, (i) the applicable
Master Servicer may direct any depository institution or trust company in which
the Escrow Accounts are maintained to invest the funds held therein in one or
more Eligible Investments; provided, however, that such funds shall be either
(x) immediately available or (y) available in accordance with a schedule which
will permit such Master Servicer to meet the payment obligations for which the
Escrow Account was established; (ii) such Master Servicer shall be entitled to
all income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) such Master Servicer shall deposit from its
own funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss, provided that such investment loss shall not include any loss with respect
to such investment which is incurred solely as a result of the insolvency of the
federal or state chartered depositary institution or trust company at which such
Escrow Account is maintained, so long as such depositary institution or trust
company (a) satisfied the qualifications set forth in the definition of
"Eligible Account" both at the time such investment was made and as of a date
not more than 30 days prior to the date of such loss and (b) is not the same
Person as the Person that made the relevant investment. The applicable Master
Servicer shall not direct the investment of funds held in any Escrow Account and
retain the income and gain realized therefrom if the terms of the related
Mortgage Loan or applicable law permit the Mortgagor to be entitled to the
income and gain realized from the investment of funds deposited therein, and
such Master Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that
such Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the
deposit or investment of) such amounts in another type of investments or
accounts. In the event the applicable 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
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funds in accordance with the Mortgagor's directions; and (2) in the absence of
appropriate written instructions from the Mortgagor, such Master Servicer shall
have no obligation to, but may be entitled to, direct the investment of such
funds; provided, however, that in either event (i) such funds shall be either
(y) immediately available or (z) available in accordance with a schedule which
will permit such Master Servicer to meet the payment obligations for which the
Escrow Account was established, and (ii) such Master Servicer shall have no
liability for any loss in investments of such funds that are invested pursuant
to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicers and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
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 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. Subject to the terms of the
related Mortgage Loan documents, 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 collateral consists of
Defeasance Collateral, (ii) such Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event, (iii) either (A) the
related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral (subject to customary qualifications)
or (B) such Master Servicer has established a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, (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 any ARD Loans, on or
before the applicable Anticipated Repayment Date) and to timely pay each
subsequent Scheduled Payment, (v) (A) a Rating Agency Confirmation is received
if the Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the
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Aggregate Certificate Balance, unless each Rating Agency has waived (which
waiver must be in writing in the case of S&P) 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) and the successor Mortgagor with respect to the
subject Mortgage Loan and its affiliates collectively have assumed Mortgage
Loans comprising an aggregate principal amount at least equal to the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance, either a Notice and
Certification in the form attached hereto as Exhibit Z is delivered to the
Rating Agencies or a Rating Agency Confirmation is received from Fitch and S&P
and (vi) a Rating Agency Confirmation from Fitch and S&P 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 the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, including, but not limited to, rating agency fees, then the sole
obligation of the related Seller shall be to pay an amount equal to such
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
expense, the applicable Master Servicer shall make demand upon the related
Seller to make such payment by deposit to a Certificate Account. The applicable
Master Servicer shall use reasonable efforts to enforce the rights of the Trust
with respect to the related Seller's obligation to pay such amounts and in the
event the related Seller fails to make such payment, such amount shall be an
expense of the Trust, provided, however, that the foregoing is not intended to
relieve the Seller of its obligations nor such Master Servicer of its obligation
nor limit the rights that any person(s) may otherwise have to enforce such
rights.
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 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 Special Servicer will
process the defeasance of such Specially Serviced Mortgage Loan, and the Special
Servicer shall be entitled to any fees paid relating to such defeasance.
(i) The 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 forty-five (45) days
after the Closing Date, the applicable 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). The applicable
Master Servicer shall promptly notify the ground lessor if the applicable Seller
has failed to do so by the thirtieth day after the Closing Date.
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(j) Pursuant to the related Intercreditor Agreement, the owner of any
B Note has agreed that the applicable Master Servicer and the Special Servicer
are authorized and obligated to service and administer the B Note pursuant to
this Agreement. The applicable Master Servicer shall be entitled, during any
period when the A Note and B Note under any A/B Mortgage Loan do not constitute
Specially Serviced Mortgage Loans, to exercise the rights and powers granted
under the related Intercreditor Agreement to the "Note A Holder" and/or the
"Servicer" referred to therein. For the avoidance of doubt, the parties
acknowledge that neither the applicable Master Servicer nor the Special Servicer
shall be entitled or required to exercise the rights and powers granted to any
"Note B Holder" as defined under the related Intercreditor Agreement.
(k) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owner of any Non-Serviced Mortgage Loan has agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer, and the applicable Non-Serviced Mortgage Loan Master Servicer
and the applicable Non-Serviced Mortgage Loan Special Servicer are authorized
and obligated to service and administer such Non-Serviced Mortgage Loan pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the applicable Master Servicer's obligations and responsibilities
hereunder and such Master Servicer's authority with respect to any Non-Serviced
Mortgage Loan are limited by and subject to the terms of the related
Non-Serviced Mortgage Loan Intercreditor Agreement and the rights of the
applicable Non-Serviced Mortgage Loan Master Servicer and the applicable
Non-Serviced Mortgage Loan Special Servicer with respect thereto under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The
applicable Master Servicer shall enforce the rights of the Trustee (as holder of
the Non-Serviced Mortgage Loans) under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and the related Non-Serviced Mortgage Loan
Intercreditor Agreement. The applicable Master Servicer shall take such actions
as it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced Mortgage Loan Master
Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(l) Pursuant to each Loan Pair Intercreditor Agreement, the owner of
the related Serviced Companion Mortgage Loan has agreed that the applicable
Master Servicer and the Special Servicer are authorized and obligated to service
and administer the Serviced Companion Mortgage Loan pursuant to this Agreement.
The applicable Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent are, to the extent applicable, authorized and directed to execute and
deliver to the owner or owners of the Serviced Companion Mortgage Loan a letter
agreement requested by the owner of the Serviced Companion Mortgage Loan, dated
as of the Closing Date, and setting forth provisions as to, among other things,
the timing of remittances, advances and reports relating to the Serviced
Companion Mortgage Loan, and references herein to the related Loan Pair
Intercreditor Agreement shall be construed to refer to
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such Loan Pair Intercreditor Agreement and such letter agreement taken together,
as applicable. To the extent that the applicable Master Servicer, the Special
Servicer, the Trustee and/or the Fiscal Agent have duties and obligations under
any such letter agreement, each successor master servicer, successor special
servicer, successor trustee and/or successor fiscal agent, respectively, under
this Agreement shall perform such duties and satisfy such obligations.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The applicable Master Servicer shall supervise, administer,
monitor, enforce and oversee the servicing of the applicable Mortgage Loans by
any Sub-Servicer appointed by it. The terms of any arrangement or agreement
between the applicable Master Servicer and a Sub-Servicer shall provide that
such agreement or arrangement may be terminated, without cause and without the
payment of any termination fees, by the Trustee in the event such Master
Servicer is terminated in accordance with this Agreement. In addition, none of
the Trustee, the Certificateholders, the holder of any Serviced Companion
Mortgage Loan or the holder of any B Note shall have any direct obligation or
liability (including, without limitation, indemnification obligations) with
respect to any Sub-Servicer. The applicable Master Servicer shall pay the costs
of enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any primary servicing agreement or
sub-servicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the applicable Master Servicer or a
Sub-Servicer, or reference to actions taken through a Sub-Servicer or otherwise,
such Master Servicer shall remain obligated and liable to the Trustee, the
Special Servicer and the Certificateholders for the servicing and administering
of the applicable Mortgage Loans, the B Notes and the Serviced Companion
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this 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 such Master Servicer alone
were servicing and administering the Mortgage Loans.
Notwithstanding anything to the contrary contained herein, it shall be
permissible for a sub-servicing agreement entered into with any sub-servicer
dated on or prior to the Closing Date to prohibit a termination of the related
sub-servicer without cause provided that such sub-servicing agreement provides
for termination for cause under events that are defined to include (among
others) an uncured failure to remit or deposit funds and a material failure to
comply with covenants (although notice and grace periods may apply). Any such
right of such a designated sub-servicer under the related sub-servicing
agreement shall be binding upon any successor Master Servicer (including the
Trustee) which successor Master Servicer shall assume such sub-servicing
agreement.
(b) Subject to the limitations of subsection (a), a Master Servicer
may appoint one or more sub-servicers (each, a "Sub-Servicer") to perform all or
any portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders.
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(c) The Servicer Report Administrator shall not be entitled to appoint
a Sub-Servicer to perform all or any portion of its duties hereunder in its
capacity as Servicer Report Administrator.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. A Master Servicer and any
agent of such Master Servicer in its individual or any other capacity may become
the owner or pledgee of Certificates with the same rights it would have if it
were not a Master Servicer or such agent. Any such interest of a Master 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, TAXES
AND OTHER. Subject to the limitations set forth below, the applicable Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Mortgagor to maintain for each Mortgage Loan (other than any
REO Mortgage Loan) (A) a Standard Hazard Insurance Policy (that, if the terms of
the related Mortgage Loan documents and the related Mortgage so require or so
permit the holder of the Mortgage Loan to require, contains no exclusion for
damages due to any "act of terrorism," as defined in the Terrorism Risk
Insurance Act of 2002) and 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 and any related B Note or
Serviced Companion Mortgage Loan, but, in any event, in an amount sufficient to
avoid the application of any co-insurance clause and (B) any other insurance
coverage for a Mortgage Loan which the related Mortgagor is required to maintain
under the related Mortgage, provided such Master Servicer shall not be required
to maintain earthquake insurance on any Mortgaged Property unless such insurance
was required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property (other
than with respect to a Non-Serviced Mortgage Loan) so long as such insurance is
available at commercially reasonable rates. If the related Mortgagor does not
maintain the insurance set forth in clauses (A) and (B) above, then the
applicable Master Servicer shall cause to be maintained such insurance with a
Qualified Insurer. The applicable Master Servicer shall be deemed to have
satisfied its obligations with respect to clause (A) above if the Mortgagor
maintains, or (subject to the provisions set forth below) such Master Servicer
shall have otherwise caused to be obtained, a Standard Hazard Insurance Policy
that is in compliance with the related Mortgage Loan documents, and, if required
by such Mortgage Loan documents or if such Mortgage Loan documents permit the
holder of the Mortgage Loan to require, the Mortgagor pays, or such Master
Servicer shall have otherwise caused to be paid, the premium required by the
related insurance provider that is necessary to avoid an exclusion in such
policy against any "act of terrorism" as defined by the Terrorism Risk Insurance
Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency
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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 a Certificate
Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the
applicable Master Servicer in maintaining any insurance pursuant to this Section
8.6 shall not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the applicable Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the applicable Master Servicer shall have
no obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the applicable
Master Servicer shall not be required in any event to obtain such insurance
coverage to the extent that the Trustee, as mortgagee, has no insurable
interest, or to cause the Mortgagor to maintain or itself obtain insurance
coverage beyond what is available on commercially reasonable terms at a cost
customarily acceptable (in each case, as determined by such Master Servicer,
which shall be entitled to rely, at its sole expense, on insurance consultants
in making such determination, consistent with the Servicing Standard) and
consistent with the Servicing Standard; provided, that such Master Servicer
shall be obligated to cause the Mortgagor to maintain or itself obtain insurance
against property damage resulting from terrorism or similar acts if the terms of
the related Mortgage Loan documents and the related Mortgage so require unless
such Master Servicer determines that (i) such insurance is not available at any
rate or (ii) such insurance is not available at commercially reasonable rates
and such hazards are not at the time commonly insured against for properties
similar to the related Mortgaged Property and located in or around the region in
which such related Mortgaged Property is located; provided, that such
determination must be made by such Master Servicer not less frequently (but need
not be made more frequently) than annually, but in any event, shall be made on
the approximate date on (but not later than sixty (60) days thereafter) which
such Master Servicer receives notice of the renewal, replacement or cancellation
of coverage (as evidenced by the related insurance policy or insurance
certificate). Notwithstanding the limitation set forth in the preceding
sentence, if the related Mortgage Loan documents and the related Mortgage
require the Mortgagor to maintain insurance against property damage resulting
from terrorism or similar acts, the applicable Master Servicer shall prior to
availing itself of any limitation described in clause (i) or (ii) of such
sentence with respect to any Mortgage Loan, obtain the approval or disapproval
of the Operating Adviser (subject to the penultimate paragraph of Section 9.39)
other than in the case of an A/B Mortgage
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Loan as to which the related holder of the related B Note is the directing or
controlling noteholder under the related Intercreditor Agreement, or, solely
with respect to the A/B Mortgage Loan, of the related holder of the B Note (but
only so long as the holder of such B Note is the directing or controlling holder
as defined in the related Intercreditor Agreement), unless such consent or
deemed consent of such B Noteholder is not required pursuant to the operation of
provisions of the related Intercreditor Agreement that (but for their
applicability to consents of the B Noteholder) are similar to the provisions of
the penultimate paragraph of Section 9.39. The applicable Master Servicer shall
be entitled to conclusively rely on the determination of the Operating Adviser
(or a B Note holder, as applicable) made in connection with such approval or
disapproval (subject to operation of the Servicing Standard and the penultimate
paragraph of Section 9.39). If any such approval has not been expressly denied
within seven (7) Business Days of receipt by the Operating Adviser from the
applicable Master Servicer of such Master Servicer's determination and analysis
and all information reasonably requested by the Operating Adviser and reasonably
available to such Master Servicer in order to make an informed decision, such
approval shall be deemed to have been granted. The applicable Master Servicer
shall notify the holder of the related Serviced Companion Mortgage Loan of any
determination that it makes pursuant to clauses (i) and (ii) above with respect
to any Serviced Pari Passu Mortgage Loan.
A 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,
any Serviced Companion Mortgage Loan and any B Note serviced by it, it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer or (ii) if such Master Servicer,
provided that its long-term rating is not less than "A" by Fitch, "A-" by S&P
and "A(low)" by DBRS (or, if not rated by DBRS, an equivalent rating (such as
those listed above for Fitch and S&P) by at least two nationally recognized
statistical rating organizations), self-insures for its obligations. 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, any Serviced Companion Mortgage Loan and any B Note, the
applicable Master Servicer agrees to present, on its behalf and on behalf of the
Trustee and the holders of any Serviced Companion
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Mortgage Loan or any B Note, 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 (i) obtain all
bills for the payment of such items (including renewal premiums), and (ii)
except in the case of Mortgage Loans under which Escrow Amounts are not held by
such Master Servicer, effect payment of all such bills, taxes and other
assessments with respect to such Mortgaged Properties prior to the applicable
penalty or termination date, in each case employing for such purpose Escrow
Amounts as allowed under the terms of the related Mortgage Loan. If a Mortgagor
fails to make any such payment on a timely basis or collections from the
Mortgagor are insufficient to pay any such item before the applicable penalty or
termination date, the 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, subject to Section 4.4 hereof. No costs
incurred by the applicable Master Servicer, the Trustee or the Fiscal Agent, as
the case may be, in effecting the payment of taxes and assessments on the
Mortgaged Properties and related insurance premiums and ground rents shall, for
the purpose of calculating distributions to Certificateholders, be added to the
Principal Balance of the Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans permit such costs to be added to the outstanding Principal
Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the applicable Master Servicer receives a request
from a Mortgagor (or other obligor) pursuant to the provisions of any Mortgage
Loan, Serviced Companion Mortgage Loan or B Note (other than a Specially
Serviced Mortgage Loan or a Non-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, Serviced Companion Mortgage Loan or B Note by, another Person, such Master
Servicer shall obtain relevant information for purposes of evaluating such
request. For the purpose of the foregoing sentence, the term 'expressly permits'
shall include outright permission to assign, permission to assign upon
satisfaction of certain conditions or prohibition against assignment except upon
Lender consent or the satisfaction of stated conditions. If the applicable
Master Servicer recommends to approve such assignment, such Master Servicer
shall provide to the Special Servicer (and solely with respect to any A/B
Mortgage Loan, the holder of the B Note) a copy of such recommendation and the
materials upon which such recommendation is based (which information shall
consist of the information to be included in the Assignment and Assumption
Submission to Special Servicer, in the form attached hereto as Exhibit U-1, in
the case of the Xxxxx Fargo Master Servicer, and in the form attached hereto as
Exhibit U-2, in the case of the PAR Master Servicer) and (A) subject to consent
or deemed consent of the Operating Adviser (unless not required pursuant to the
operation of the penultimate paragraph of Section 9.39), other than in the case
of an A/B Mortgage Loan as to which the related holder of the related
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B Note is the directing or controlling noteholder under the related
Intercreditor Agreement, or, with respect to the A/B Mortgage Loan the consent
of the related B Note holder (but only so long as the holder of such B Note is
the directing or controlling holder as defined in the related Intercreditor
Agreement), unless such consent or deemed consent of such B Noteholder is not
required pursuant to the operation of provisions of the related Intercreditor
Agreement that (but for their applicability to consents of the B Noteholder) are
similar to the provisions of the penultimate paragraph of Section 9.39, the
Special Servicer shall have the right hereunder to grant or withhold consent to
any such request for such assignment and assumption in accordance with the terms
of the Mortgage Loan, Serviced Companion Mortgage Loan or B Note and this
Agreement, and any such decision of the Special Servicer shall be in accordance
with the Servicing Standard, (B) failure of the Special Servicer to notify such
Master Servicer in writing, within fifteen (15) Business Days (or in the case of
the A/B Mortgage Loan, within thirty-five (35) Business Days) following such
Master Servicer's delivery of the recommendation described above and the
complete 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 and (C) such
Master Servicer shall not permit any such assignment or assumption unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described in the preceding sentence. Upon consent
or deemed consent by the Special Servicer to such proposed assignment and
assumption, the applicable Master Servicer shall process such request of the
related Mortgagor (or other obligor) 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,
Serviced Companion Mortgage Loan or B Note and substitute as obligor thereunder
the Person to whom the related Mortgaged Property has been or is proposed to be
conveyed; provided, however, that such Master Servicer shall not enter into any
such agreement to the extent that any terms thereof would result in an Adverse
REMIC Event or create any lien on a Mortgaged Property that is senior to, or on
parity with, the lien of the related Mortgage. To the extent permitted by
applicable law, the applicable Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor (or other obligor) is in conformity to the terms of the related
Mortgage Loan and, if applicable, B Note or Serviced Companion Loan documents,
provided, however, that nothing in this sentence shall impose upon any such
Master Servicer a different or higher standard of servicing than the Servicing
Standard. The applicable Master Servicer shall notify the Trustee, the Paying
Agent and the Special Servicer of any assignment and assumption or substitution
agreement executed pursuant to this Section 8.7(a). The applicable Master
Servicer shall be entitled to (as additional servicing compensation) 50% of any
assumption fee collected from a Mortgagor in connection with an assignment and
assumption or substitution of a non-Specially Serviced Mortgage Loan executed
pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to
(as additional special servicing compensation) the other 50% of such fee.
Neither of the Master Servicers nor the Special Servicer shall have
any liability, and each of them 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 the Operating Adviser, or any of them, to respond to
such request in a reasonable period of time.
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(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan or a Non-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 shall review and make a determination to either (i) enforce such
due-on-sale clause or (ii) if in the best economic interest of the Trust, waive
the effect of such provision, such waiver to be processed in the same manner as
in Section 8.7(a) (including the Special Servicer consent provisions); 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, such Master Servicer shall obtain
Rating Agency Confirmation (including with respect to any securities which are
rated by a Rating Agency evidencing direct beneficial interests in the A Notes
and any B Note) regarding such waiver. In connection with the request for such
Rating Agency Confirmation, the applicable Master Servicer shall prepare and
deliver to Fitch, S&P and DBRS a memorandum outlining its analysis and
recommendation in accordance with the Servicing Standard, together with copies
of all relevant documentation. The applicable Master Servicer shall promptly
forward copies of the assignment and assumption documents relating to any
Mortgage Loan to the Special Servicer, the Paying Agent and the Trustee, and
such Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The 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 granting or withholding such consent (other than
any such fee payable in connection with any Non-Serviced Mortgage Loan).
(c) The Trustee for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note shall
execute any necessary instruments in the form presented to it by the applicable
Master Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant
to subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the applicable
Master Servicer or the Special Servicer, as the case may be, shall cause the
originals of the assignment and assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Loan to be delivered to the
Trustee except to the extent such documents have been submitted to the recording
office, in which event such Master Servicer shall promptly deliver copies of
such documents to the Trustee and the Special Servicer.
(d) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other
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encumbrance on the related Mortgaged Property or a lien on an 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
or a lien on an ownership interest in the Mortgagor,
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, subject to the Special Servicer's consent or deemed consent (it being
acknowledged that the Special Servicer may be required to obtain the consent or
deemed consent of the Operating Adviser, subject to the penultimate paragraph of
Section 9.39), (or, subject to Section 8.18, waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard, the following paragraph and Section 8.18 hereof. The applicable Master
Servicer shall not waive the effect of such provision without first obtaining
Rating Agency Confirmation (including with respect to any securities which are
rated by a Rating Agency evidencing direct beneficial interests in the A Notes
and any B Note) 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, has a Principal Balance of more than $20,000,000 or is one of the
10 largest Mortgage Loans based on Principal Balance or (y) has a Loan-to-Value
Ratio (which includes the indebtedness to be secured by such additional lien or
other encumbrance and any other loans secured by the related Mortgaged Property
or interests in the related Mortgagor) that is greater than or equal to 85% or a
Debt Service Coverage Ratio (which includes debt service on the indebtedness to
be secured by such additional lien or other encumbrance and any other loans
secured by the related Mortgaged Property or interests in the related Mortgagor)
that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in the
event that the applicable Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, such 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 Special Servicer a copy of such recommendation and the
materials upon which such recommendation is based (which information shall
consist of the information to be included in the Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package to the Special Servicer,
in the form attached hereto as Exhibit V, in the case of the Xxxxx Fargo Master
Servicer and Exhibit U-2, in the case of the PAR Master Servicer) and (A)
subject to the Operating Adviser's consent (and the penultimate paragraph of
Section 9.39), the 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 the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify such Master Servicer in writing, within fifteen (15) 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 to the Special Servicer
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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) such
Master Servicer shall not permit any such waiver unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described in the preceding sentence. If the Special Servicer
withholds consent pursuant to the foregoing provisions, it shall provide the
applicable Master Servicer with a written statement and a verbal explanation as
to its reasoning and analysis. Upon consent or deemed consent by the Special
Servicer to such proposed waiver, the applicable Master Servicer shall process
such request of the related Mortgagor subject to the other requirements set
forth above.
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining
any Rating Agency Confirmation in connection with an assumption of the related
Mortgage Loan are insufficient to reimburse the Trust, then it shall be the sole
obligation of the related Seller to pay an amount equal to such insufficiency to
the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency, the applicable Master Servicer or the
Special Servicer, as applicable, shall request the applicable 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 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.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the complete defeasance of a
Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan, the purchase of an A Note by the holder of a B Note pursuant to
the related Intercreditor Agreement, or the receipt by the applicable 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 such 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 such 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 with written evidence of cancellation thereon and, if the related Mortgage
has been recorded in the name of MERS or its designee, such Master Servicer
shall, at the expense of the related Seller (if not paid by the Mortgagor),
which Seller shall pay such expense upon demand therefor by such Master
Servicer, take all necessary action to reflect the release of such Mortgage on
the records of MERS. The provisions of the immediately preceding sentence shall
not, in any manner, limit or impair the right of the applicable Master Servicer
to execute and deliver, on behalf of the Trustee, the Certificateholders, the
holder of any Serviced Companion Mortgage Loan, the holder of any B Note or any
of them, any and all instruments of satisfaction, cancellation or assignment
without recourse, representation or warranty, or of partial or full release or
discharge and all other comparable instruments, with respect to the Mortgage
Loans, any Serviced
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Companion Mortgage Loan or any B Note, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders, the holder of any
Serviced Companion Mortgage Loan and the holder of any B Note. 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 Special
Servicer, as the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, a 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,
the applicable Master Servicer in respect of any Mortgage Loans (or any B Note
or Serviced Companion Mortgage Loan), whether from the collection of principal
and interest payments or from Liquidation Proceeds or Insurance Proceeds (and
other insurance proceeds payable to the B Note), including any funds on deposit
in the applicable Certificate Account (or any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account), shall be held by such
Master Servicer for and on behalf of the Trustee and the Certificateholders
(and/or the holder of any B Note or Serviced Companion Mortgage Loan, as
applicable) and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. The applicable
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
applicable Certificate Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee, 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 such Master Servicer
shall be entitled to receive from any such funds any amounts that are properly
due and payable to such Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to the applicable Master Servicing Fee, which shall be payable
by the Trust from amounts
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held in the applicable Certificate Account (and from the related A/B Loan
Custodial Account to the extent related solely to a B Note and from the related
Serviced Companion Mortgage Loan Custodial Account to the extent related solely
to a Serviced Companion Mortgage Loan) or otherwise collected from the Mortgage
Loans as provided in Section 5.2. The applicable Master Servicer shall be
required to pay to the holders of the rights to the Excess Servicing Fees, 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, 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
hereunder.
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note pursuant to the terms of the related Intercreditor
Agreement) payable at a rate above the Mortgage Rate (net of any amount used to
pay Advance Interest), Modification Fees, forbearance fees, Late Fees (net of
Advance Interest) (excluding Late Fees allocable to any B Note if the holder of
the B Note has cured the related default pursuant to the terms of the related
Intercreditor Agreement) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the applicable Master Servicer,
provided that such Master Servicer shall be entitled to (i) receive 50% of
assumption fees collected on Mortgage Loans as provided in Sections 8.7(a) and
8.7(b), (ii) Modification Fees as provided in Section 8.18 hereof, and (iii)
100% of any extension fees collected from the related Mortgagor in connection
with the extension of the Maturity Date of any Mortgage Loan approved by such
Master Servicer as provided in Section 8.18, unless the consent of the Special
Servicer to such extension is also required under Section 8.18, in which case
such Master Servicer shall be entitled to only 50% of such extension fee and the
Special Servicer shall be entitled to the other 50%; provided, however, that
such Master Servicer shall not be entitled to any such fees in connection with
any Specially Serviced Mortgage Loans or any Non-Serviced Mortgage Loan.
Notwithstanding the foregoing, (i) the applicable Master Servicer shall be
entitled to only 50% of any Modification Fees collected with respect to a
consent, waiver, modification or amendment executed or granted by such Master
Servicer if the approval or consent of the Special Servicer was required in
connection therewith and the Special Servicer shall be entitled to the other 50%
and (ii) such Master Servicer shall not be entitled to any Modification Fee or
extension fee in connection with an extension of the maturity date of a Mortgage
Loan (that is not a Specially Serviced Mortgage Loan) approved by the Special
Servicer in accordance with the fifth sentence of Section 8.18(a)(ii). If a
Master Servicer collects any amount payable to the Special Servicer hereunder in
connection with an REO Mortgage Loan or Specially Serviced Mortgage Loan, such
Master Servicer shall promptly remit such amount to the Special Servicer as
provided in Section 5.2. Each Master Servicer shall be required to pay all
applicable expenses incurred by it in connection with its servicing activities
hereunder.
(c) Notwithstanding any other provision herein, with respect to any
Distribution Date, the Master Servicing Fee for the monthly period relating to
such Distribution Date (together with any investment income earned prior to such
Distribution Date on Principal Prepayments as to which Prepayment Interest
Shortfalls were incurred with respect to such Distribution Date) shall be
reduced by an amount equal to the Compensating Interest (if any)
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relating to Mortgage Loans which are not Specially Serviced Mortgage Loans for
such Determination Date.
(d) The applicable Master Servicer shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
not Specially Serviced Mortgage Loans for each Distribution Date over the
aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
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 the
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 (or with respect to a Serviced Companion Mortgage Loan, to
the holder thereof or its servicer), no later than 1:00 p.m., New York City
time, on the related Report Date, the Master Servicer Remittance Report (which
shall include the Loan Periodic Update File and be accompanied by an Advance
Recovery Report) with respect to such Distribution Date including any
information regarding prepayments made pursuant to Section 5.2(b), relating to
the Mortgage Loans as to which it is the applicable Master Servicer (and
information delivered to such Master Servicer by the applicable Other Master
Servicer (if any) with respect to the Mortgage Loans as to which such Master
Servicer is the applicable Master Servicer (as described in the immediately
succeeding clause (ii)), without segregation according to the identities of the
Master Servicers and (ii) each Master Servicer shall report to the Paying Agent
and the Trustee on the related Advance Report Date, the amount of the P&I
Advance, if any, to be made by such Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for each Master Servicer to satisfy its duties in this Section 8.11.
(b) Each Master Servicer, upon request, shall deliver to the Trustee,
the Paying Agent and the Special Servicer within 45 days after a Distribution
Date a statement setting forth the status of its Certificate Account as of the
close of business as of the last day of the month for such Distribution Date
showing, for the period covered by such statement, the aggregate of deposits in
or withdrawals from such Certificate Account, and shall deliver to each holder
of a B Note and Serviced Companion Mortgage Loan within 30 days following each
Distribution Date a statement setting forth the status of the related A/B Loan
Custodial Account and Serviced Companion Mortgage Loan Custodial Account, as of
the close of business on such Distribution Date showing, for the period covered
by such statement, the aggregate of transfers in and transfers from or deposits
in or withdrawals from such A/B Loan Custodial Account or Serviced Companion
Mortgage Loan Custodial Account, as applicable.
(c) Each Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
its Certificate Account in order to permit the Special Servicer to make deposits
therein.
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(d) Reserved
(e) The Servicer Report Administrator or the applicable Master
Servicer, as the case may be, shall deliver a copy of any reports or information
delivered to the Trustee or the Paying Agent pursuant to subsection (a) or
subsection (b) of this Section 8.11 to the Depositor, the Special Servicer, the
Operating Adviser and each Rating Agency, in each case upon request by such
Person and only to the extent such reports and information are not otherwise
required to be delivered to such Person under any provision of this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Servicer Report Administrator or the applicable Master Servicer, as the case
may be, shall not have any obligation (other than to the Special Servicer and,
to the extent provided in the last sentence of Section 8.14, the Operating
Adviser) to deliver any statement, notice or report that is then made available
on the a Master Servicer's or the Paying Agent's internet website, provided that
it has notified all parties entitled to delivery of such reports, by electronic
mail or other notice provided in this Agreement, to the effect that such
statements, notices or reports shall thereafter be made available on such
website from time to time.
(g) The Servicer Report Administrator shall deliver or cause to be
delivered to the Paying Agent, and the holder of any Serviced Companion Mortgage
Loan (in respect of such Serviced Companion Mortgage Loan) the following CMSA
Reports, combining information for the Mortgage Loans (and, if applicable, the
related REO Properties and, to the extent received from the applicable
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan) for
which it is the Master Servicer and the information delivered to the Servicer
Report Administrator by the Other Master Servicer with respect to the Mortgage
Loans (and, if applicable, the related REO Properties and, to the extent
received from the applicable Non-Serviced Mortgage Loan Master Servicer, any
Non-Serviced Mortgage Loan) for which such Other Master Servicer is the Master
Servicer, without segregation according to the identities of the Master
Servicers, providing the required information as of the related Determination
Date upon the following schedule: (i) a Comparative Financial Status Report and
the CMSA Financial File, commencing in October 2005 (no later than 1 Business
Day prior to the related Distribution Date); (ii) a CMSA Operating Statement
Analysis Report and an NOI Adjustment Worksheet in accordance with Section 8.14
of this Agreement, commencing in October 2005; (iii) a CMSA Watch List in
accordance with and subject to the terms of Section 8.11(h), commencing in
October 2005 (no later than 1 Business Day prior to the related Distribution
Date); (iv) a Loan Set-Up File (with respect to the initial Distribution Date
only) not later than the Report Date in September 2005; (v) [reserved]; (vi) a
Property File, commencing in October 2005 (no later than 1 Business Day prior to
the related Distribution Date); (vii) a Delinquent Loan Status Report,
commencing in October 2005 (no later than 1 Business Day prior to the related
Distribution Date); (viii) an Historical Loan Modification Report, commencing in
October 2005 (no later than 1 Business Day prior to the related Distribution
Date), (ix) an Historical Liquidation Report, commencing in October 2005 (no
later than 1 Business Day prior to the related Distribution Date); and (x) an
REO Status Report (no later than 1 Business Day prior to the related
Distribution Date), commencing in October 2005. Not later than 1:00 p.m., New
York City time, on the Business Day immediately preceding the date on which the
Servicer Report Administrator is required to deliver to the Paying Agent, and
the holder of any Serviced Companion Mortgage Loan (in respect of such Serviced
Companion Mortgage Loan), the relevant CMSA Report as
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identified in the schedule in the immediately preceding sentence, the Master
Servicer that is not the Servicer Report Administrator shall prepare and deliver
or cause to be delivered to the Servicer Report Administrator a Comparative
Financial Status Report and the CMSA Financial File, a CMSA Operating Statement
Analysis Report and an NOI Adjustment Worksheet, a CMSA Watch List, a Loan
Set-Up File, a Loan Periodic Update File, a Property File, a Delinquent Loan
Status Report, a Historical Loan Modification Report, a Historical Liquidation
Report, and an REO Status Report, combining information for the Mortgage Loans
(and, if applicable, the related REO Properties and, to the extent received from
the applicable Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced
Mortgage Loan) for which such Master Servicer is the Master Servicer. The
information that pertains to Specially Serviced Mortgage Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the applicable Master Servicer in writing
and on a computer readable medium reasonably acceptable to such Master Servicer
and the Special Servicer one (1) Business Day after the Determination Date prior
to the related Master Servicer Remittance Date in the form required under
Section 9.32. Each Master Servicer's 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 Special Servicer's obligations under
Section 9.32. The reporting obligations of the applicable Master Servicer in
connection with any A/B Mortgage Loan shall be construed to refer only to such
information regarding the A/B Mortgage Loan (and its related Mortgaged Property)
and by reference to the related A Note only, but whenever such Master Servicer
remits funds to the holder of the related B Note, it shall thereupon deliver to
such holder a remittance report identifying the amounts in such remittance.
Notwithstanding anything herein to the contrary, any report delivered to the
Operating Adviser shall be delivered to the holder of a B Note if it relates to
the related A/B Mortgage Loan; provided, however, for the sake of clarity, the
holder of a B Note shall not be entitled to the Special Servicer's (or other
Person's, as applicable) calculation of the Option Purchase Price for a
Defaulted Mortgage Loan.
(h) For each Distribution Date, the Servicer Report Administrator
shall deliver to the Paying Agent (and solely with respect to any A/B Mortgage
Loan, the holder of the related B Note and solely with respect to any Loan Pair,
the holder of the related Serviced Companion Mortgage Loan), not later than 1
Business Day prior to the related Distribution Date, a CMSA Watch List,
combining information for the Mortgage Loans for which it is the Master Servicer
and the information delivered to the Servicer Report Administrator by the Other
Master Servicer with respect to the Mortgage Loans for which such Other Master
Servicer is the Master Servicer, without segregation according to the identities
of the Master Servicers. The Servicer Report Administrator shall list any
Mortgage Loan on the CMSA Watch List as to which any of the events specified in
the CMSA Watch List published by the CMSA for industry use has occurred. Not
later than 1:00 p.m., New York City time, on the Business Day immediately
preceding the related date on which the Servicer Report Administrator must
provide its report as set forth above, the Master Servicer that is not the
Servicer Report Administrator shall prepare and deliver or cause to be delivered
to the Servicer Report Administrator a CMSA Watch List which shall list any
Mortgage Loan on the CMSA Watch List as to which any of the events specified in
the CMSA Watch List published by the CMSA for industry use has occurred.
(i) If the applicable 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
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contemplated in and by a reserve or escrow agreement (other than after a default
under an applicable Mortgage Loan or B Note), such Master Servicer shall, within
five (5) Business Days following its receipt of the proceeds of such drawing,
deliver notice thereof to the Special Servicer, the Operating Adviser, the
holder of the related B Note, if applicable, and the Paying Agent, which notice
shall set forth (i) the unpaid Principal Balance of such Mortgage Loan or B Note
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 entitled such Master Servicer to make such drawing.
(j) Each Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, shall prepare and deliver (or make available on
their respective websites) to the Operating Adviser the reports and information
described in Exhibit BB (to the extent not otherwise delivered pursuant to this
Agreement) in the form and format and within the time frame set forth therein.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. Each Master Servicer
shall deliver to the Depositor, the Paying Agent, the Luxembourg Paying Agent
and the Trustee on or before March 15 of each year (or March 14 if a leap 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. The applicable Master Servicer shall
forward a copy of each such statement to the Rating Agencies and the Operating
Adviser. Promptly after receipt of such Officer's Certificate, the Depositor
shall review the Officer's Certificate and, if applicable, consult with the
applicable Master Servicer as to the nature of any defaults by such Master
Servicer in the fulfillment of any of such Master Servicer's obligations
hereunder.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 15 of each year (or March 14 if a leap
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 the applicable Master Servicer) and that is a member of
the American Institute of Certified Public Accountants to furnish a statement to
the Trustee, the Paying Agent, the Luxembourg Paying Agent and the Depositor,
with a copy to the Rating Agencies, to the effect that (i) it has obtained a
letter of representation regarding certain matters from the management of the
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
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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 the 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 the Sub-Servicers. Promptly after
receipt of such report, the Depositor shall review the report and, if
applicable, consult with the applicable Master Servicer as to the nature of any
defaults by such Master Servicer in the fulfillment of any of such Master
Servicer's obligations hereunder.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year) for the trailing or quarterly
information received, commencing in the quarter ending on September 30, 2005,
the applicable Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall deliver to the Paying Agent and the
Operating Adviser, and solely if it relates to any A/B Mortgage Loan, to the
holder of the related B Note (but only so long as the holder of such B Note is
the directing or controlling holder as defined in the related Intercreditor
Agreement), a CMSA Operating Statement Analysis Report and a CMSA Financial File
for each Mortgaged Property (in electronic format), prepared using the
non-normalized quarterly and normalized year-end operating statements and rent
rolls received from the related Mortgagor. Not later than the Report Date
occurring in June of each year, beginning in 2006 for year-end 2005, the
applicable Master Servicer (in the case of Mortgage Loans that are not Specially
Serviced Mortgage Loans) or the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall deliver to the Paying Agent and the Operating
Adviser a CMSA Operating Statement Analysis Report, a CMSA Financial File and an
NOI Adjustment Worksheet for each Mortgage Loan (in electronic format), based on
the most recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to
such Master Servicer by or on behalf of each Mortgagor, or, in the case of
Specially Serviced Mortgaged Loans, as provided to the Special Servicer (by or
on behalf of each applicable Mortgagor), which Special Servicer shall forward
such information to such Master Servicer on or before May 31 of each such year),
containing such information and analyses for each Mortgage Loan provided for in
the respective forms of CMSA Operating Statement Analysis Report, CMSA Financial
File and an NOI Adjustment Worksheet as would customarily be included in
accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income, subject, in the case of any Non-Serviced
Mortgage Loan, to the receipt of such report from the applicable Non-Serviced
Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan
Special Servicer. The applicable Master Servicer shall make reasonable efforts,
consistent with the Servicing Standard, to obtain such reports from the
applicable Non-Serviced Mortgage Loan Master Servicer or the applicable
Non-Serviced Mortgage Loan Special Servicer. In addition, the applicable Master
Servicer shall deliver to the Operating Adviser, and solely if it relates to any
A/B Mortgage Loan, to the holder of the related B Note (but only so long as the
holder of such B Note is the directing or controlling holder as defined in the
related Intercreditor Agreement), and upon request such Master Servicer shall
make available to the Rating Agencies, the Special Servicer, the Paying Agent,
the Trustee and the holder of any Serviced Companion Mortgage Loan, within 30
days following receipt thereof by such Master Servicer, copies of any annual,
monthly or quarterly financial statements and rent rolls collected with respect
to the Mortgaged Properties. As and to the extent
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reasonably requested by the 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 Agents, the Underwriters, and solely as it
relates to any A/B Mortgage Loan, to the holder of the related B Note (but only
so long as the holder of such B Note is the directing or controlling holder as
defined in the related Intercreditor Agreement) and solely as it relates to any
Loan Pair, to the holder of the related Serviced Companion Mortgage Loan, the
CMSA Operating Statement Analysis Reports, CMSA Financial Files and NOI
Adjustment Worksheets described above pursuant to Section 5.4(a). The applicable
Master Servicer shall electronically deliver the CMSA Operating Statement
Analysis Report, the operating statements, rent rolls, property inspections and
NOI Adjustment Worksheet for each Mortgage Loan to the Operating Adviser.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICERS.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent
shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, any Placement Agent, any
Underwriter, each Rating Agency, the Paying Agent or the Depositor (and the
holder of a B Note, if it relates to a B Note and the holder of a Serviced
Companion Mortgage Loan, if it relates to a Serviced Companion Mortgage Loan),
originals or copies of, among other things, the following items: (i) this
Agreement and any amendments thereto, (ii) all final and released CMSA Operating
Statement Analysis Reports and the Master Servicer Remittance Reports, (iii) all
Officer's Certificates (including Officer's Certificates evidencing any
determination of Nonrecoverable Advances) delivered to the Trustee and the
Paying Agent since the Closing Date, (iv) all accountants' reports delivered to
the Trustee and the Paying Agent since the Closing Date, (v) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicers and/or the Special Servicer and (vi) any and all
Officers' Certificates (and attachments thereto) delivered to the Trustee and
the Paying Agent to support the applicable Master Servicer's determination that
any Advance was not or, if made, would not be, recoverable. The Trustee and the
Paying Agent will be permitted to require payment of a sum to be paid by the
requesting party (other than the Rating Agencies, the Trustee, the Paying Agent,
any Placement Agent or any Underwriter) sufficient to cover the reasonable costs
and expenses of making such information available.
(b) Subject to the restrictions described below, the applicable Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the Special Servicer, the Sellers, the Placement Agents, the
Underwriters, the Operating Adviser, any Certificateholder, any holder of a
Serviced Companion Mortgage Loan, any holder of a B Note 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 such Master Servicer's or the Paying
Agent's internet website), and access to Servicing Officers of such Master
Servicer
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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 Servicer upon request;
provided, however, that such Master Servicer shall be permitted to require
payment by the requesting party (other than the Depositor, the Trustee, the
Paying Agent, the 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 a Master Servicer or the
Servicer Report Administrator, as the case may be, 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 a Master Servicer nor
the Servicer Report Administrator, as the case may be, shall have any liability
to the Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the Special
Servicer, any Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced
Mortgage Loan Special Servicer, any Certificateholder, any Certificate Owner,
any holder of a Serviced Companion Mortgage Loan, any holder of a B Note, any
Placement Agent, any Underwriter, any Rating Agency or any other Person to whom
it delivers information pursuant to this Section 8.15 or any other provision of
this Agreement for federal, state or other applicable securities law violations
relating to the disclosure of such information. In the event any Person brings
any claims relating to or arising from the foregoing against a Master Servicer
or the Servicer Report Administrator, as the case may be, (or any employee,
attorney, officer, director or agent thereof), the Trust (from amounts held in
any account (including (x) with respect to any such claims relating to a
Serviced Companion Mortgage Loan, from amounts held in the related Serviced
Companion Mortgage Loan Custodial Account and (y) with respect to any such
claims relating to a B Note, from amounts held in the related A/B Loan Custodial
Account) or otherwise) shall hold harmless and indemnify such Master Servicer or
the Servicer Report Administrator, as the case may be, from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The applicable Master Servicer or the Servicer Report
Administrator, as the case may be, shall produce the reports required of it
under this Agreement; provided, however, that such Master Servicer or the
Servicer Report Administrator, as the case may be, shall not be required to
produce any ad hoc non-standard written reports with respect to such Mortgage
Loans. In the event the applicable Master Servicer or the Servicer Report
Administrator, as the case may be, 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 applicable
Master Servicer or the Servicer Report Administrator, as the case may be, making
any report or information available upon request to any Person other than the
parties hereto, such Master Servicer or the Servicer Report Administrator, as
the case may be, may require that the recipient of such information acknowledge
that such Master Servicer or the Servicer Report Administrator, as the case may
be, may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the Sellers,
any Placement Agent, any Underwriter, any
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Rating Agency and/or the Certificateholders, the holder of a Serviced Companion
Mortgage Loan, the holder of a B Note or Certificate Owners. Any transmittal of
information by the applicable Master Servicer or the Servicer Report
Administrator, as the case may be, to any Person other than the Trustee, the
Paying Agent, a Master Servicer, the Special Servicer, the Rating Agencies, the
Operating Adviser, the Servicer Report Administrator or the Depositor may be
accompanied by a letter from the applicable Master Servicer or the Servicer
Report Administrator, as the case may be, containing the following provision:
"By receiving the information set forth herein, you hereby acknowledge
and agree that the United States securities laws restrict any person who
possesses material, non-public information regarding the Trust which issued
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ6 from purchasing or selling such Certificates
in circumstances where the other party to the transaction is not also in
possession of such information. You also acknowledge and agree that such
information is being provided to you for the purpose of, and such
information may be used only in connection with, evaluation by you or
another Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(e) A Master Servicer or the Servicer Report Administrator, as the
case may be, 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 or the Servicer Report Administrator, as the
case may be, is required to provide to any of the Rating Agencies, the Depositor
and anyone the Depositor reasonably designates.
(f) A Master Servicer or the Servicer Report Administrator, as the
case may be, shall cooperate in providing the Rating Agencies with such other
pertinent information relating to the Mortgage Loans as is or should be in their
respective possession as the Rating Agencies may reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the 1933 Act, each Master Servicer agrees to provide to the Paying Agent or the
Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof, any
Certificate Owner therein and to any prospective purchaser of the Certificates
or beneficial interest therein reasonably designated by the Paying Agent or the
Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Sections 5.4 and 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 1933 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
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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 Agents, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
applicable 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 Luxembourg Paying Agent, the Placement Agents,
the Underwriters, any Rating Agency and/or the Certificateholders and
Certificate Owners. A Master Servicer will be permitted to require payment of a
sum to be paid by the requesting party (other than the Rating Agencies, the
Trustee, the Paying Agent, the Placement Agents or the Underwriters) sufficient
to cover the reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The applicable Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and
Non-Serviced Mortgage Loans, every calendar year beginning in 2006 or every
second calendar year beginning in 2006, if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; provided that the applicable
Master Servicer shall, at the expense of the Trust, inspect or cause to be
inspected each Mortgaged Property related to a Mortgage Loan that has a Debt
Service Coverage Ratio that falls below 1.0x and provided further, that with
respect to any Mortgage Loan or Loan Pair that has a Principal Balance of less
than $2,000,000 and has been placed on the CMSA Watch List, the applicable
Master Servicer shall, at the expense of the Trust and at request of the
Controlling Class, inspect or cause to be inspected the related Mortgaged
Property every calendar year beginning in 2006 so long as such Mortgage Loan or
Loan Pair continues to be on the CMSA Watch List; provided, if such Mortgage
Loan or Loan Pair is no longer on the CMSA Watch List at the time the inspection
was scheduled, no such inspection shall be required. The applicable Master
Servicer shall prepare an Inspection Report relating to each inspection. The
applicable Master Servicer shall promptly forward the applicable Inspection
Report to the Trustee, the Operating Adviser, the Special Servicer, solely as it
relates to any Loan Pair, also to the holder of the related Serviced Companion
Mortgage Loan, and solely as it relates to any A/B Mortgage Loan, to the holder
of the related B Note, and upon request, to any Certificateholder, any
Certificate Owner, the Underwriters, the Rating Agencies and any Seller. The
Special Servicer shall have the right to inspect or cause to be inspected (at
its own expense) every calendar year any Mortgaged Property related to a
Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that the
Special Servicer notifies the applicable Master Servicer prior to such
inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, each 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
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other than a Money Term or other material term of a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that is not a Specially Serviced Mortgage
Loan (such terms to include, without limitation, Master Servicer Consent Matters
set forth in Section 8.3(a) hereof), 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 Special Servicer of any Mortgagor's request to release
such letter of credit which such Master Servicer recommends to release, and (ii)
if the terms of the related Mortgage Loan do not require such Master Servicer to
approve such release, then the Special Servicer, subject to the consent or
deemed consent of the Operating Adviser (unless such consent or deemed consent
is not required pursuant to the penultimate paragraph of Section 9.39), shall
within fifteen Business Days provide notice to such Master Servicer as to
whether such Master Servicer should approve the release (and the failure of the
Special Servicer to give such Master Servicer such notice shall automatically be
deemed to be an approval by the Special Servicer that the applicable Master
Servicer should grant such release). Notwithstanding the preceding sentence,
with respect to an A/B Mortgage Loan, if an A/B Mortgage Loan as to which the
related holder of the related B Note is the directing or controlling holder
under the related Intercreditor Agreement, then the Special Servicer's right to
consent to such matters shall be exercisable by such holder of the related B
Note if such holder is the directing or controlling holder under the related
Intercreditor Agreement (unless such consent or deemed consent of such B
Noteholder is not required pursuant to the operation of provisions of the
related Intercreditor Agreement that (but for their applicability to consents of
the B Noteholder) are similar to the provisions of the penultimate paragraph of
Section 9.39). Notwithstanding the second preceding sentence, if the applicable
Master Servicer recommends to approve such 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), such Master Servicer shall
provide to the Special Servicer a copy of such Master Servicer's recommendation
and the relevant information obtained or prepared by such Master Servicer in
connection therewith; provided, that (A) subject to the Operating Adviser's (or
the holder of a B Note, as applicable) consent (and the penultimate paragraph of
Section 9.39 and any authority of the Special Servicer to act without such
consent) or deemed consent, the Special Servicer shall have the right hereunder
to grant or withhold consent to any such proposed modification, waiver,
amendment or consent, and such consent of the Special Servicer shall be
consistent with the Servicing Standard, (B) failure of the Special Servicer to
notify the applicable Master Servicer, within fifteen Business Days (or in the
case of the A/B Mortgage Loan, within thirty-five (35) Business Days) following
such Master Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the applicable Master Servicer shall not enter
into any such proposed modification, waiver, amendment or consent unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described above. Notwithstanding anything in this
Agreement to the contrary, the applicable Master Servicer shall not be required
to obtain or request the consent of the Special Servicer in connection with any
modification, waiver or amendment, or granting its consent to transactions,
under one or more of the Mortgage Loans that in each case such Master Servicer
has determined (in accordance with the Servicing Standard) is immaterial. In any
event,
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the applicable Master Servicer shall promptly notify the 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 Special Servicer
a copy thereof. Notwithstanding the foregoing provisions of this Section 8.18,
if the Mortgage Loan documents require a Mortgagor to pay a fee for an
assumption, modification, waiver, amendment or consent that would be due or
partially due to the Special Servicer, then the applicable Master Servicer shall
not waive the portion of such fee due to the Special Servicer without the
Special Servicer's approval.
(ii) The applicable Master Servicer may, without the consent of
any other Person, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date if in 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 such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and Serviced Companion Mortgage Loan (as a
collective whole) on a net present value basis than liquidation of such Mortgage
Loan and the Mortgagor has obtained an executed written commitment (subject only
to satisfaction of conditions set forth therein) for refinancing of the Mortgage
Loan or purchase (for an amount sufficient to satisfy such Mortgage Loan) of the
related Mortgaged Property within such 60-day period and continues to make the
Assumed Scheduled Payments with respect to such Balloon Mortgage Loan. The
applicable Master Servicer shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor in
connection with any extension pursuant to the immediately preceding sentence. In
addition, the applicable Master Servicer may, with the consent of the Special
Servicer after consultation with the Operating Adviser, or the holder of a B
Note, as applicable (such consent to be obtained by the applicable Master
Servicer no later than 30 days following the Maturity Date of the applicable
Balloon Mortgage Loan and, in connection with any request by such Master
Servicer for such consent, such Master Servicer shall provide the Special
Servicer with a recommendation and the materials on which such recommendation is
based), otherwise extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan for up to one year (but for no more than
two (2) such extensions of up to one year each) provided that such extension
does not extend beyond the date that is two years prior to the Rated Final
Distribution Date, if the related Borrower has failed to make the Balloon
Payment on such Mortgage Loan or if in the applicable 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. The
applicable Master Servicer shall process all such extensions referred to in the
immediately preceding sentence and shall be entitled to (as additional servicing
compensation) 50% of any extension fees collected from a Mortgagor with respect
to any such extension, and the Special Servicer shall be entitled to the other
50% of such extension fees. Following any such two extensions of the maturity
date of a Mortgage Loan which the applicable Master Servicer is permitted to
approve pursuant to the third sentence of this Section 8.18(a)(ii), the Special
Servicer and not such Master Servicer shall be responsible for determining
whether to further extend and, if so, processing the extension of, the maturity
date of such Mortgage Loan; provided, that it shall not be a Servicing Transfer
Event with respect to any such extension of the maturity date of such Mortgage
Loan by such Master Servicer or the Special Servicer in accordance with this
Section 8.18(a)(ii) (if such extension is effected no later than 30 days
following the date on which the Balloon Payment was first due, taking into
account any previous extensions thereof, and at such time no other
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circumstance referred to in the definition of "Servicing Transfer Event" exists
that would cause such Mortgage Loan to be characterized as a Specially Serviced
Mortgage Loan) until such time as the Special Servicer has approved three such
extensions (of up to one year each) and the Borrower has defaulted at the end of
such third extension. In connection with an extension of the maturity date of a
Mortgage Loan (that is not a Specially Serviced Mortgage Loan) approved by the
Special Servicer in accordance with the preceding sentence, the Special Servicer
shall process all requests and related documentation and shall be entitled to
retain 100% of any modification fee or extension fee that is actually paid by
the related Mortgagor. The Special Servicer shall promptly notify the applicable
Master Servicer of any extension granted by the Special Servicer in accordance
with this paragraph.
(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, amendment or collateral release, 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 Regulation Section 1.860G-2(b) of the Mortgage Loan). Except
as provided in the last sentence of this Section 8.18(b) and Section
8.18(a)(ii), 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 Section 8.3
or this Section 8.18. The applicable Master Servicer may charge the Mortgagor
for any costs and expenses (including attorneys' fees and rating agency fees)
incurred by such Master Servicer or the Special Servicer (which amounts shall be
reimbursed to the Special Servicer) in connection with any request for a
modification, waiver or amendment. The applicable Master Servicer agrees to use
its best reasonable efforts in accordance with the Servicing Standard to collect
such costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of such 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. The Special Servicer shall be entitled to, and the
applicable Master Servicer shall forward to the Special Servicer, 50% of any
Modification Fees collected with respect to a consent, waiver, modification or
amendment executed or granted by such Master Servicer if the approval or consent
of the Special Servicer was required in connection therewith.
(c) The applicable Master Servicer shall notify the Trustee, the
Paying Agent, the Operating Adviser, the holder of the B Note, if applicable and
the Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and shall
deliver to the Trustee for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly following the execution thereof except to the extent such documents
have been submitted to the applicable recording office, in which event the
applicable Master Servicer shall promptly deliver copies of such documents to
the Trustee. The applicable Master Servicer
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shall not agree to any modification, waiver, or amendment of any Money Term of a
Mortgage Loan or any term of a Specially Serviced Mortgage Loan. The applicable
Master Servicer shall notify the holder of the B Note and the Serviced Companion
Mortgage Loan of any modification of the monthly payments of an A/B Mortgage
Loan or a Loan Pair, as the case may be, and such monthly payments shall be
allocated in accordance with the related Intercreditor Agreement or Loan Pair
Intercreditor Agreement, as applicable.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to 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 Special Servicer, provided that
(1) the aggregate amount of the related releases or establishments is no greater
than the smaller of 10% of the outstanding unpaid Principal Balance or $75,000
or (2) the condition to be waived is deemed to be non-material in accordance
with the Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the applicable Master Servicer shall not waive: (1) a requirement for
any such additional collateral to exist, or (2) a lock box requirement.
(e) (i) With respect to the Mortgage Loan designated as Mortgage Loan
No. 1 on the Mortgage Loan Schedule, the applicable Master Servicer, to the
extent permitted under the related Mortgage Loan Documents, shall obtain a
Rating Agency Confirmation at the expense of the related Mortgagor with respect
to any replacement of the related property manager. (ii) With respect to the
Mortgage Loan designated as Mortgage Loan No. 2 on the Mortgage Loan Schedule,
the applicable Master Servicer, to the extent permitted under the related
Mortgage Loan Documents, shall obtain a Rating Agency Confirmation at the
expense of the related Mortgagor with respect to any replacement of the related
property manager.
(f) The applicable Master Servicer will not be required to obtain a
Rating Agency Confirmation in connection with this Agreement unless the terms of
this Agreement specifically requires such Master Servicer to do so, and if so
required by the terms of this Agreement, the applicable Master Servicer shall
not be permitted to waive (i) the Rating Agency Confirmation requirement or (ii)
the obligation of a Mortgagor to pay all or any portion of any fee payable in
connection with obtaining the Rating Agency Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The applicable Master Servicer shall send a written notice to the
Special Servicer, the Operating Adviser, the Rating Agencies, the Paying Agent,
the Trustee and solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note and solely as it relates to any Loan Pair, to the holder of
the related Serviced Companion Mortgage Loan, within two Business Days after
becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan,
which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and whether such Mortgage Loan is covered by an Environmental Insurance Policy
(and for purposes of stating whether such Mortgage Loan is covered by an
Environmental Insurance Policy the applicable Master Servicer may rely on
Schedule X attached hereto) and, except for the Rating Agencies, the Paying
Agent,
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and the Trustee, shall be accompanied by a copy of the Servicer Mortgage File.
The Special Servicer shall not be liable for its failure to deliver the notice
set forth in Section 9.36(a) if such failure is caused by its failure to receive
the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the 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 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 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
Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
(d) On or prior to each Distribution Date, the applicable Master
Servicer shall provide to the Special Servicer, in order for the Special
Servicer to comply with its obligations under this Agreement, such information
(and in the form and medium) as the Special Servicer may reasonably request in
writing from time to time, provided that (i) such 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 Special Servicer to pay a reasonable fee to
cover the costs of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH MASTER
SERVICER.
(a) The Xxxxx Fargo Master Servicer, hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) such Master Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States, and shall be and thereafter remain, in compliance with the laws of each
State in which any 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 such Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) such Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. Such Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by such Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the Special
Servicer and the Other Master Servicer, evidences the valid and binding
obligation of such Master Servicer enforceable against such Master Servicer in
accordance with its terms subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium,
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receivership and other similar laws affecting creditors' rights generally as
from time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to such Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the relevant Mortgage Loans or to perform any of its other obligations
hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by such Master Servicer
contemplated by this Agreement are in the ordinary course of business of such
Master Servicer and such Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(b) The PAR Master Servicer, hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) such Master Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of Delaware, and
shall be and thereafter remain, 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 such Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) such Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. Such Master Servicer has duly and
validly authorized the execution, delivery
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and performance of this Agreement and this Agreement has been duly executed and
delivered by such Master Servicer; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the Trustee, the
Fiscal Agent, the Paying Agent, the Special Servicer and the Other Master
Servicer, evidences the valid and binding obligation of such Master Servicer
enforceable against such Master Servicer in accordance with its terms subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which in
the good faith and reasonable judgment of such Master Servicer materially and
adversely affects its ability to perform its obligations under this Agreement;
(iv) no litigation is pending or, to such Master Servicer's
knowledge, threatened, against it, that would in such Master Servicer's good
faith and reasonable judgment materially and adversely affect the execution,
delivery or enforceability of this Agreement or its ability to service the
relevant Mortgage Loans or to perform any of its other obligations hereunder in
accordance with the terms hereof;
(v) no consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the execution,
delivery and performance by it of, or compliance by it with, this Agreement, or
the consummation of the transactions contemplated hereby, and such Master
Servicer possesses all licenses and authorizations necessary to perform its
obligations under this Agreement, except for those consents, approvals,
authorizations, orders or licenses that previously have been obtained or where
the lack thereof would not have a material adverse effect on the ability of the
Master Servicer to perform its obligations under this Agreement; and
(vi) the performance of the services by such Master Servicer
contemplated by this Agreement are in the ordinary course of business of such
Master Servicer and such Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
(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 the applicable Master Servicer arising
out of the breach of any of its representations and warranties made in this
Section shall accrue upon the giving of written notice to applicable Master
Servicer by any of the Trustee or the applicable
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Master Servicer. The applicable Master Servicer shall give prompt notice to the
Trustee, the Depositor and the Special Servicer of the occurrence, or the
failure to occur, of any event that, with notice or the passage of time or both,
would cause any representation or warranty given by it 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 of the Rating Agencies provides a
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing direct beneficial ownership interests in any Serviced
Companion Mortgage Loan or B Note). If the conditions to the provisions in the
foregoing sentence are not met, the Trustee may terminate the applicable Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, 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 a Master Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Trustee. No such
resignation shall become effective until a successor servicer designated by the
Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the applicable Master Servicer's responsibilities and obligations under
this Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by such Master Servicer to the Trustee.
(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, and (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; (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 Rating
Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
Each Master Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the applicable Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the applicable Master Servicer hereunder or (B)
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assign and delegate all of its duties hereunder; provided, however, that with
respect to clause (B), (i) the applicable Master Servicer gives the Depositor,
the Special Servicer, the holder of the B Note (only if such
assignment/delegation relates to the related A/B Mortgage Loan), the holder of
the Serviced Companion Mortgage Loan (only if such assignment/delegation relates
to the related Loan Pair) and the Trustee notice of such assignment and
delegation; (ii) such purchaser or transferee accepting such assignment and
delegation executes and delivers to the Depositor and the Trustee an agreement
accepting such assignment, which contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
applicable Master Servicer, with like effect as if originally named as a party
to this Agreement; (iii) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (iv) the Depositor consents to such assignment
and delegation, such consent not be unreasonably withheld. In the case of any
such assignment and delegation in accordance with the requirements of subclause
(B) of this Section, the applicable 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 a Master Servicer
hereunder prior to the satisfaction of the conditions to such assignment set
forth in the preceding sentence. Notwithstanding the above, the applicable
Master Servicer may appoint the Sub-Servicers in accordance with Section 8.4
hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICERS AND
OTHERS.
(a) Neither the Master Servicers nor any of the 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 Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters, the holder of any Serviced
Companion Mortgage Loan, the holder of any B Note or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the applicable 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 this
Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicers and any 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 Special Servicer) respecting any matters arising hereunder.
Neither Master Servicer shall 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 such 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, the interests of the
holder of any B Note or the interests of the holder of any Serviced Companion
Mortgage Loan (subject to the Special Servicer's servicing of Specially Serviced
Mortgage Loans as contemplated herein), or shall undertake any such action if
instructed to do so by the Trustee. In such event, all legal expenses and costs
of such action shall be expenses and costs of the Trust, and such 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.
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(b) In addition, neither Master Servicer shall have liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to such Master Servicer 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 Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be 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 Master Servicer nor any
director, officer, employee, agent or Affiliate, shall be 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) Neither Master Servicer shall be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent, the Trustee, the Fiscal Agent
or the Other Master Servicer in this Agreement. The Trust shall indemnify and
hold harmless each Master Servicer from any and all claims, liabilities, costs,
charges, fees or other expenses which relate to or arise from any such breach of
representation, warranty or covenant to the extent 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) each Master Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
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(e) Each Master Servicer and any director, officer, employee or agent
of such Master Servicer shall be indemnified by the Trustee, the Fiscal Agent,
the Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, the
Fiscal Agent's, the Paying Agent's, the Special Servicer's or the Other Master
Servicer's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard of its respective duties hereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of such Master Servicer's duties hereunder
or by reason of negligent disregard of such Master Servicer's obligations and
duties hereunder. The applicable Master Servicer shall immediately notify the
Trustee, the Paying Agent and the Special Servicer if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling such Master
Servicer to indemnification hereunder, whereupon the Trustee, the Paying Agent
or the Special Servicer, in each case, to the extent the claim is related to its
respective willful misfeasance, bad faith or negligence, may assume the defense
of any such claim (with counsel reasonably satisfactory to 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 Special Servicer shall not affect any rights
that the applicable Master Servicer may have to indemnification under this
Agreement or otherwise, unless the Trustee's, the Paying Agent's or the Special
Servicer's defense of such claim is materially prejudiced thereby. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the applicable Master Servicer hereunder. Any payment hereunder made
by the Trustee, the Paying Agent, the Fiscal Agent or the Special Servicer
pursuant to this paragraph to the applicable Master Servicer shall be paid from
the Trustee's, the Paying Agent's, the Fiscal Agent's or Special Servicer's own
funds, without reimbursement from the Trust therefor except to the extent
achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee, the Paying Agent, the
Fiscal Agent or the Special Servicer shall be reimbursed by the party so paid,
if a court of competent jurisdiction makes a final judgment that the conduct of
the Trustee, the Paying Agent, the Fiscal Agent or the Special Servicer, as the
case may be, was (x) not culpable or (y) found to not have acted with willful
misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) Each Master Servicer and any director, officer, employee or agent
of such Master Servicer (the "Master Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes, as provided in the following paragraph, against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses (collectively, "Master
Servicer Losses") incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B
Notes, any REO Property or the Certificates or any exercise of any right under
this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of the
applicable Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
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Except as provided in the following sentence, indemnification for
Master Servicer Losses described in the preceding paragraph (including in the
case of such Master Servicer Losses that relate primarily to the administration
of the Trust, to any REMIC Pool or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC provisions of the Code or the
actual payment of any REMIC tax or expense) shall be paid out of collections on,
and other proceeds of, the Mortgage Loans as a whole but not out of collections
on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In
the case of any such Master Servicer Losses that do not relate primarily to the
administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then such
indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable
Intercreditor Agreement and (y) if the collections and proceeds described in
subclause (x) of this clause (1) are not sufficient to so indemnify the Master
Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage Loan,
then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate
collections and proceeds described in subclauses (x) and (y) of this clause (2)
are not sufficient to so indemnify the Master Servicer Indemnified Parties on a
current basis, then the balance of such indemnification shall be paid out of
collections on, and other proceeds of, the Mortgage Loans as a whole.
The applicable 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. The
indemnification provided herein shall survive the termination of this Agreement.
The Trustee, the Paying Agent or the applicable Master Servicer shall promptly
make from the applicable Certificate Account (and, if and to the extent that the
amount due shall be paid from collections on, and other proceeds of, any
Serviced Companion Mortgage Loan or any B Note, as described above, out of the
related Serviced Companion Mortgage Loan Custodial Account or the related A/B
Loan Custodial Account) any payments certified by the applicable Master Servicer
to the Trustee and the Paying Agent as required to be made to such Master
Servicer pursuant to this Section 8.25.
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(b) The applicable Master Servicer agrees to indemnify the Trustee,
the Fiscal Agent, the Special Servicer, the Trust, the Depositor, the Paying
Agent, and any director, officer, employee, agent or Controlling Person thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from
or as a result of the willful misfeasance, bad faith or negligence in the
performance of any of such Master Servicer's duties hereunder or by reason of
negligent disregard of such Master Servicer's obligations and duties hereunder.
The Trustee, the Fiscal Agent, the 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 Fiscal Agent, the Depositor, the
Special Servicer, the Paying Agent or the Trust to indemnification under this
Section 8.25(b), whereupon such Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent or the Depositor, as applicable)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
applicable Master Servicer shall not affect any rights the Trustee, the Fiscal
Agent, the Special Servicer, the Depositor, the Paying Agent or the Trust may
have to indemnification under this Agreement or otherwise, unless such 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 Fiscal
Agent, the 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 such Master Servicer
was not culpable or that such Master Servicer did not act with willful
misfeasance, bad faith or negligence.
(c) Reserved.
(d) Any Non-Serviced Mortgage Loan Master Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Master Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of 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 any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Master Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 8.26 1934 ACT REPORTING
(a) Each Master Servicer, the Special Servicer, the Paying Agent, the
Trustee and the Fiscal Agent shall reasonably cooperate with the Depositor in
connection with the Trust's satisfaction of its reporting requirements under the
1934 Act. Within 15 days after each
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Distribution Date, the Paying Agent shall prepare, execute 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 Securities and Exchange Commission (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. 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 on behalf of the Trust a Form 10-K, 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. Neither the
Paying Agent nor the applicable Master Servicer shall have any liability with
respect to any failure to properly prepare, execute or file such periodic
reports resulting from such Master Servicer's or the Paying Agent's inability or
failure to obtain any information not resulting from its own negligence, bad
faith or willful misconduct. Prior to January 30 of the first year in which the
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 applicable Master
Servicer and the Special Servicer (each, a "Performing Party") shall 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 CC hereto 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. In
addition, in the event that any Serviced Companion Mortgage Loan is deposited
into a commercial mortgage securitization, on or before March 20th of each year
with respect to which a Form 10-K is filed by the related trustee for such
commercial mortgage securitization, the applicable Master Servicer and the
Special Servicer, shall provide to the Person who signs the Xxxxxxxx-Xxxxx
Certification with respect to such commercial mortgage securitization a
Performance Certification (which shall address the matters contained in the
Performance Certification, but solely with respect to the related Serviced
Companion Mortgage Loan) on which such Person and such Person's partner,
representative, Affiliate, member,
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manager, director, officer, employee or agent 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 duties pursuant to this Agreement. In the event any
Performing Party is terminated or resigns pursuant to the terms of this
Agreement, such Performing Party shall provide a Performance Certification to
the Depositor pursuant to this Section 8.26(b) with respect to the period of
time such Performing Party was subject to this Agreement.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.26 or (ii) negligence, bad faith or willful misconduct on the
part of the Performing Party in the performance of such obligations.
(d) Nothing contained in this Section 8.26 shall be construed to
require any party to this Agreement other than the Depositor, or any of such
party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification.
The failure of any party to this Agreement other than the Depositor, or any of
such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification shall not be regarded as a breach by such party of any of its
obligations under this Agreement. This Section 8.26 may be amended by the
parties hereto pursuant to Section 13.3 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person
without any Opinions of Counsel, Officer's Certificates, Rating Agency
Confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. Each Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of each REMIC
Pool created hereby as a REMIC and the Excess Interest Grantor Trust as a
grantor trust under the Code. Each Master Servicer shall not (A) take any action
or cause any REMIC Pool to take any action that could (i) endanger the status of
any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a
tax upon any REMIC Pool (including, but not limited to, the tax on prohibited
transactions as defined in Code Section 860F(a)(2) or on prohibited
contributions pursuant to Section 860G(d)) or (B) take any action or cause the
Excess Interest Grantor Trust to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon the
Excess Interest Grantor Trust, unless the Trustee shall have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect
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that the contemplated action will not endanger such status or result in the
imposition of such tax. Each Master Servicer shall comply with the provisions of
Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of a
Master Servicer created hereby (other than the obligation of a Master Servicer
to make payments to the Paying Agent as set forth in Section 8.29 and the
obligations of a Master Servicer to the Trustee, the Paying Agent, the Fiscal
Agent, the Special Servicer and the Trust) shall terminate (i) on the date which
is the later of (A) the final payment or other liquidation of the last Mortgage
Loan remaining outstanding (and final distribution to the Certificateholders) or
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default described in clauses
8.28(a)(iii), (iv) or (ix) has occurred, 60 days following the date on which the
Trustee or Depositor gives written notice to the applicable Master Servicer that
such Master Servicer is terminated or (iii) if an Event of Default described in
clauses 8.28(a)(i), (ii), (v), (vi), (vii) or (viii) has occurred, immediately
upon the date on which the Trustee or the Depositor gives written notice to the
applicable Master Servicer that such Master Servicer is terminated. After any
Event of Default, the Trustee (i) may elect to terminate a Master Servicer by
providing such notice, and (ii) shall provide such notice if holders of
Certificates representing more than 25% of the Aggregate Certificate Balance of
all Certificates so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the applicable Master Servicer to remit to the
Paying Agent or the holder of a B Note or otherwise make any payment required to
be remitted by such Master Servicer under the terms of this Agreement, including
any required Advances, which failure continues unremedied as of 10:00 a.m. (New
York City time) on the Business Day following the date on which such deposit was
first required to be made; or
(ii) any failure by the applicable Master Servicer to make a
required deposit to the applicable Certificate Account or the A/B Loan Custodial
Account that continues unremedied for one Business Day following the date on
which such deposit was first required to be made; or
(iii) any failure on the part of the applicable Master Servicer
duly to observe or perform in any material respect any other of the duties,
covenants or agreements on the part of such Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to such Master Servicer by the Depositor or the Trustee;
provided, however, that if such Master Servicer certifies to the Trustee and the
Depositor that such Master Servicer is in good faith attempting to remedy such
failure, such cure period will be extended to the extent necessary to permit
such Master Servicer to cure such failure; provided, further that such cure
period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained
in Section 8.20 hereof that materially and adversely affects the interest of any
holder of any Class of Certificates and that continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the same to
be remedied, shall have been given to the applicable
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Master Servicer by the Depositor or the Trustee, provided, however, that if such
Master Servicer certifies to the Trustee and the Depositor that such Master
Servicer is in good faith attempting to remedy such breach, such cure period
will be extended to the extent necessary to permit such Master Servicer to cure
such breach; provided, further that such cure period may not exceed 90 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the applicable Master Servicer and such
decree or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vi) the applicable Master Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to such Master Servicer or of
or relating to all or substantially all of its property; or
(vii) the applicable Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) the applicable Master Servicer is no longer listed on
S&P's Select Servicer List as a U.S. Commercial Mortgage Master Servicer and is
not reinstated within 60 days and the ratings then assigned by S&P to any
Classes of Certificates are downgraded, qualified or withdrawn (including,
without limitation, being placed on "negative credit watch") in connection with
such removal;
(ix) the Trustee shall receive notice from Fitch or DBRS to the
effect that the continuation of the applicable Master Servicer in such capacity
would result in the downgrade, qualification or withdrawal of any rating then
assigned by Fitch or DBRS to any Class of Certificates; or
(x) the applicable Master Servicer has been downgraded to a
servicer rating level below "CMS3" (or its equivalent) by Fitch.
(b) If the applicable Master Servicer is terminated based upon an
Event of Default set forth in clause (i) (as to the obligation to make P&I
Advances), (viii), (ix) or (x) of Section 8.28(a), then such Master Servicer
shall have the right to enter into a primary servicing agreement with a
successor Master Servicer with respect to all applicable Mortgage Loans, so long
as the successor Master Servicer is listed on S&P's Select Servicer List as a
U.S. Commercial Mortgage Master Servicer and is rated not less than "CPS3" (or
its then equivalent) by Fitch and as approved by DBRS.
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(c) Notwithstanding the other provisions of this Section 8.28, (A) if
any Event of Default on the part of the applicable Master Servicer occurs that
affects a Serviced Companion Mortgage Loan or (B) for so long as any Serviced
Companion Mortgage Loan is serviced hereunder and is included in a
securitization that is rated by Xxxxx'x, if the applicable Master Servicer
receives actual knowledge that Xxxxx'x has (i) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates, or (ii)
placed one or more Classes of Certificates on "watch status" in contemplation of
a rating downgrade or withdrawal (and such "watch status" placement shall not
have been withdrawn by Xxxxx'x within 60 days of the date that such Master
Servicer obtained such actual knowledge) and, in the case of either of clauses
(i) or (ii), citing servicing concerns with the applicable Master Servicer as
the sole or material factor in such rating action, and in either case, the
applicable Master Servicer is not otherwise terminated in accordance with this
Section 8.28, then, at the request of the holder of such affected Serviced
Companion Mortgage Loan, the Trustee shall require the applicable Master
Servicer to appoint, within 30 days of the Trustee's request, a Sub-Servicer
(or, if the related Mortgage Loan is currently being sub-serviced, to replace,
within 30 days of the Trustee's request, the then-current Sub-Servicer with a
new Sub-Servicer) with respect to the related Mortgage Loan only, but as to no
other Mortgage Loan. In connection with a Master Servicer's appointment of a
Sub-Servicer at the request of the Trustee in accordance with this Section
8.28(c), such Master Servicer shall obtain a Rating Agency Confirmation (such
Rating Agency Confirmation to be an expense of the requesting Serviced Companion
Mortgage Loan holder). The related Sub-Servicing Agreement shall provide that
any Sub-Servicer appointed by the applicable Master Servicer at the request of
the Trustee in accordance with this Section 8.28(c) shall be responsible for all
duties, and shall be entitled to all compensation, of such Master Servicer under
this Agreement with respect to the subject Loan Pair.
(d) If at any time a Master Servicer that is also the Servicer Report
Administrator is terminated in accordance with the terms of this Agreement, then
the Depositor shall send a written notice of termination to the Servicer Report
Administrator (which notice shall specify the reason for such termination) and
remove such Servicer Report Administrator and appoint a successor Servicer
Report Administrator by written instrument, one copy of which instrument shall
be delivered to the Servicer Report Administrator so removed, one copy to the
successor Servicer Report Administrator, and one copy to each of the Trustee,
the Paying Agent, the Master Servicers and the Rating Agencies. In all such
cases, the Servicer Report Administrator shall bear all costs of transfer to a
successor Servicer Report Administrator, such succession only to take effect
after a successor Servicer Report Administrator has been appointed. In the case
of the initial Servicer Report Administrator, the Depositor must also remove the
PAR Master Servicer in accordance with this Section 8.28.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28(a), specifying the Master Servicer Remittance Date
upon which the final transfer by the applicable Master Servicer to the Paying
Agent shall be made, shall be given promptly in writing by such Master Servicer
to the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month of such final distribution. Upon any such termination, the
duties of the applicable Master Servicer (other than the obligation of such
Master Servicer to pay to the Paying Agent the
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amounts remaining in the applicable Certificate Account as set forth below and
the obligations of such Master Servicer to the Trustee and the Trust and the
Fiscal Agent as provided herein) shall terminate and such Master Servicer shall
transfer to the Paying Agent the amounts remaining in the applicable Certificate
Account (and any sub-account) after making the withdrawals permitted to be made
pursuant to Section 5.2 and shall thereafter terminate the applicable
Certificate Account and any other account or fund maintained with respect to the
Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the applicable Master Servicer pursuant to clause (ii) of the first paragraph of
Section 8.28, or on the date on which a written notice of termination is given
to such Master Servicer pursuant to clause (iii) of the first paragraph of
Section 8.28 all authority, power and rights of such Master Servicer under this
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
terminate (except for any rights relating to unpaid servicing compensation or
unreimbursed Advances or, (i) if the terminated Master Servicer is Xxxxx Fargo
Bank, National Association, its rights to the applicable Excess Servicing Fee,
subject to Section 8.10(a), or (ii) if the terminated Master Servicer is
Prudential Asset Resources, Inc., its rights to the applicable Excess Servicing
Fee, subject to Section 8.10(a)); provided that in no event shall the
termination of the applicable Master Servicer be effective until a successor
servicer shall have succeeded such Master Servicer as successor servicer,
subject to approval by the Rating Agencies, notified such Master Servicer of
such designation and such successor servicer shall have assumed such Master
Servicer's obligations and responsibilities hereunder, as set forth in an
agreement substantially in the form hereof, with respect to the Mortgage Loans
and, in the circumstances set forth in the last sentence of Section 8.28(b),
entered into a new primary servicing agreement with the applicable predecessor
Master Servicer in substantially the same form as (i) with respect to the Xxxxx
Fargo Master Servicer, Exhibit AA attached hereto and (ii) with respect to the
PAR Master Servicer, Exhibit AA, or otherwise in such form as may be reasonably
acceptable to the applicable predecessor Master Servicer and such successor.
Except as provided in the next sentence, the Trustee may not succeed a Master
Servicer as servicer until and unless it has satisfied the provisions that would
apply to a Person succeeding to the business of such Master Servicer pursuant to
Section 8.22(b) hereof. Notwithstanding the foregoing sentence, in the event
that a Master Servicer is terminated as a result of an event described in
Section 8.28(a)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee shall act as
successor servicer immediately upon delivery of a notice of termination to such
Master Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of such Master Servicer, either to satisfy the conditions of
Section 8.22(b) hereof or to transfer the duties of such Master Servicer to a
successor servicer who has satisfied such conditions. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the applicable
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The applicable Master Servicer agrees to
cooperate with the Trustee, the Paying Agent and the Fiscal Agent in effecting
the termination of such Master Servicer's responsibilities and rights hereunder
as Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee all documents and
records in electronic or other form reasonably requested by it to enable the
successor servicer designated by the Trustee to assume such Master Servicer's
functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by
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such Master Servicer in the applicable Certificate Account and any other account
or fund maintained or thereafter received with respect to the Mortgage Loans.
(c) If the applicable Master Servicer receives a written notice of
termination pursuant to clause (ii) of the first paragraph of Section 8.28
relating solely to an Event of Default set forth in clause (viii), (ix) or (x)
of Section 8.28(a), and if such Master Servicer provides the Trustee with the
appropriate "request for proposal" materials within five Business Days after
receipt of such written notice of termination, then the Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the
applicable Master Servicer) solicit good faith bids for the rights to service
the Mortgage Loans under this Agreement from at least three but no more than
five Qualified Bidders or, if three Qualified Bidders cannot be located, then
from as many persons as the Trustee can determine are Qualified Bidders. At the
Trustee's request, the applicable Master Servicer shall supply the Trustee with
the names of Persons from whom to solicit such bids. In no event shall the
Trustee be responsible if less than three Qualified Bidders submit bids for the
right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as a successor Master
Servicer, and to agree to be bound by the terms hereof, not later than 45 days
after termination of the applicable Master Servicer hereunder. The Trustee shall
select the Qualified Bidder with the highest cash bid (or such other Qualified
Bidder as the applicable Master Servicer may direct) (the "Successful Bidder")
to act as a successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as a successor Master Servicer
pursuant to the terms hereof, and in connection therewith to deliver the amount
of the Successful Bidder's cash bid to the Trustee by wire transfer of
immediately available funds to an account specified by the Trustee no later than
10:00 a.m. New York City time on the date specified for the assignment and
assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as a
successor Master Servicer within 45 days after the termination of the applicable
Master Servicer hereunder or no Successful Bidder was identified within such
45-day period, the Trustee shall have no further obligations under Section
8.29(c) and may act or may select another successor to act as a Master Servicer
hereunder in accordance with Section 8.29(b).
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude the Excess Servicing
Rights and those servicing rights and duties as to which Xxxxx Fargo Bank,
National Association or Prudential Asset Resources, Inc., as the case may be,
has made an election for the execution of a primary servicing agreement as
contemplated by Section 8.28(b).
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SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER AND
SPECIAL SERVICER.
No less often than on a monthly basis or as agreed upon by the
applicable Master Servicer and the Operating Adviser, each of the applicable
Master Servicer and the Special Servicer shall, without charge, make a Servicing
Officer available to answer questions from the Operating Adviser regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
such Master Servicer or the Special Servicer, as the case may be, is
responsible. The Operating Advisor will provide to the applicable Master
Servicer five (5) Business Days' advance notice of any Mortgage Loans to be
discussed that are not then listed on the CMSA Watch List.
SECTION 8.31 CERTAIN MATTERS WITH RESPECT TO THE CROSSROADS CENTER
MORTGAGE LOAN.
Notwithstanding Section 2.4(f) of the Reserve and Security Agreement
for the Crossroads Center Mortgage Loan, which provides that, if certain
conditions have not been satisfied on or before December 31, 2005, the lender
shall, at its option and in its sole discretion, either apply the remaining
balance of the Holdback Escrow (as defined under the Reserve and Security
Agreement) as a partial prepayment of the Crossroads Center Mortgage Loan or
retain the remaining balance of the Holdback Escrow as further security
therefor, the applicable Master Servicer or the Special Servicer shall, if such
conditions have not been satisfied on or before December 31, 2005, apply the
remaining balance of the Holdback Escrow as a partial prepayment of the
Crossroads Center Mortgage Loan, unless such Master Servicer or the Special
Servicer has received an Opinion of Counsel that retaining the remaining balance
of the Holdback Escrow as further security therefore will not result in an
Adverse REMIC Event.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the Servicing Standard and the
terms of this Agreement. Certain of the provisions of this Article IX make
explicit reference to their applicability to Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note; notwithstanding such explicit
references, references in this Article IX to "Mortgage Loans" shall be
construed, unless otherwise specified, to refer also to such B Note and such
Serviced Companion Mortgage Loan (but any other terms that are defined in
Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
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(b) The Special Servicer shall cooperate with the applicable Master
Servicer and provide such Master Servicer with the information reasonably
requested by such Master Servicer, in writing, to the extent required to allow
such Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide such ad hoc reports, the Special Servicer may require
such Master Servicer to pay a reasonable fee to cover the costs of the
preparation thereof. The Special Servicer's obligations with respect to the
servicing of any Specially Serviced Mortgage Loan and any related REO Properties
sh