EXECUTION VERSION
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XXXXXX XXXXXXX CAPITAL I INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
LNR PARTNERS, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2006
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-HQ10
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions .................................................... vi
Section 1.2 Calculations Respecting Mortgage Loans ......................... lxxxvii
Section 1.3 Calculations Respecting Accrued Interest ....................... lxxxvii
Section 1.4 Interpretation ................................................. lxxxviii
Section 1.5 ARD Loans ...................................................... lxxxviii
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage
Loans .......................................................... lxxxix
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans ................................... xci
Section 2.2 Acceptance by Trustee .......................................... xciv
Section 2.3 Seller's Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and
Warranties ..................................................... xcvi
Section 2.4 Representations and Warranties ................................. cii
Section 2.5 Conveyance of Interests ........................................ ciii
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans ........ ciii
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates ............................................... ciii
Section 3.2 Registration ................................................... civ
Section 3.3 Transfer and Exchange of Certificates .......................... cv
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates .............. cxi
Section 3.5 Persons Deemed Owners .......................................... cxi
Section 3.6 Access to List of Certificateholders' Names and
Addresses ...................................................... cxi
Section 3.7 Book-Entry Certificates ........................................ cxii
Section 3.8 Notices to Clearing Agency ..................................... cxv
Section 3.9 Definitive Certificates ........................................ cxv
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer ................................ cxvi
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage Loans
and Serviced Pari Passu Mortgage Loans ......................... cxvii
Section 4.2 Servicing Advances ............................................. cxviii
Section 4.3 Advances by the Trustee ........................................ cxix
i
Section 4.4 Evidence of Nonrecoverability .................................. cxx
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan ................................ cxxi
Section 4.6 Reimbursement of Advances and Advance Interest ................. cxxii
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections .................................................... cxxiv
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account ....................................... cxxviii
Section 5.3 Distribution Account and Reserve Account ....................... cxxxix
Section 5.4 Paying Agent Reports ........................................... cxliii
Section 5.5 Paying Agent Tax Reports ....................................... cxlv
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally ........................................ cxlv
Section 6.2 REMIC I ........................................................ cxlvi
Section 6.3 REMIC II ....................................................... cxlvii
Section 6.4 Reserved ....................................................... cxlix
Section 6.5 REMIC III and Excess Interest Grantor Trust .................... cxlix
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability ............................ clvi
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate Prepayment
Interest Shortfalls ............................................ clix
Section 6.8 Adjustment of Servicing Fees ................................... clix
Section 6.9 Appraisal Reductions ........................................... clix
Section 6.10 Compliance with Withholding Requirements ....................... clx
Section 6.11 Prepayment Premiums ............................................ clx
Section 6.12 Other Distributions ............................................ clxi
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent ..................... clxiv
Section 7.2 Certain Matters Affecting the Trustee, the Custodian and
the Paying Agent ............................................... clxvi
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans .................... clxviii
Section 7.4 The Trustee and the Paying Agent May Own Certificates .......... clxix
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent .......................................................... clxix
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent .......................................................... clxx
Section 7.7 Successor Trustee or Paying Agent .............................. clxxii
Section 7.8 Merger or Consolidation of Trustee or Paying Agent ............. clxxii
ii
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian ...................................................... clxxiii
Section 7.10 Authenticating Agents .......................................... clxxv
Section 7.11 Indemnification of Trustee and the Paying Agent ................ clxxvi
Section 7.12 Fees and Expenses of Trustee and the Paying Agent .............. clxxviii
Section 7.13 Collection of Moneys ........................................... clxxviii
Section 7.14 Trustee To Act; Appointment of Successor ....................... clxxviii
Section 7.15 Notification to Holders ........................................ clxxxi
Section 7.16 Representations and Warranties of the Trustee and the
Paying Agent ................................................... clxxxi
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee and the Paying Agent ................. clxxxiii
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders ............................................. clxxxiii
Section 7.19 Appointment of a Fiscal Agent .................................. clxxxiv
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties ........................... clxxxv
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer .............................. clxxxvii
Section 8.3 Master Servicer's General Power and Duties ..................... clxxxviii
Section 8.4 Primary Servicing and Sub-Servicing ............................ cxciv
Section 8.5 Servicers May Own Certificates ................................. cxcvi
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and
Other .......................................................... cxcvi
Section 8.7 Enforcement of Due-On-Sale and Due-on-Encumbrance Clauses;
Assumption Agreements; Other Provisions ........................ cxcix
Section 8.8 Trustee to Cooperate; Release of Mortgage Files ................ cciii
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of the
Certificateholders ............................................. cciv
Section 8.10 Servicing Compensation ......................................... cciv
Section 8.11 Master Servicer Reports; Account Statements .................... ccv
Section 8.12 Reserved ....................................................... ccviii
Section 8.13 Reserved ....................................................... ccviii
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the
Mortgaged Properties ........................................... ccviii
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer ................................................ ccix
Section 8.16 Rule 144A Information .......................................... ccxi
Section 8.17 Inspections .................................................... ccxii
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents ....................................................... ccxiii
Section 8.19 Specially Serviced Mortgage Loans .............................. ccxix
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer ....................................................... ccxix
Section 8.21 Merger or Consolidation ........................................ ccxxi
Section 8.22 Resignation of Master Servicer ................................. ccxxi
Section 8.23 Assignment or Delegation of Duties by Master Servicer .......... ccxxii
Section 8.24 Limitation on Liability of the Master Servicer and
Others ......................................................... ccxxiii
Section 8.25 Indemnification; Third-Party Claims ............................ ccxxv
Section 8.26 Reserved ....................................................... ccxxviii
iii
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions ..................................................... ccxxviii
Section 8.28 Termination .................................................... ccxxix
Section 8.29 Procedure Upon Termination ..................................... ccxxxi
Section 8.30 Operating Adviser Contact with Master Servicer and Special
Servicer ....................................................... ccxxxiii
Section 8.31 Class A-4FL Swap Contract ...................................... ccxxxiii
Section 8.32 Class A-MFL Swap Contract ...................................... ccxxxv
ARTICLE IX
ADMINISTRATIION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer ..................................... ccxxxvii
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
Special Servicer ............................................... ccxxxix
Section 9.3 Sub-Servicers .................................................. ccxxxix
Section 9.4 Special Servicer General Powers and Duties ..................... ccxxxix
Section 9.5 Reserved ....................................................... ccxlii
Section 9.6 Release of Mortgage Files ...................................... ccxliii
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee ............................ ccxliii
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer ....................................................... ccxliv
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies ............................................. ccxlvi
Section 9.10 Presentment of Claims and Collection of Proceeds ............... ccxlvii
Section 9.11 Compensation to the Special Servicer ........................... ccxlviii
Section 9.12 Realization Upon Defaulted Mortgage Loans ...................... ccxlix
Section 9.13 Foreclosure .................................................... ccli
Section 9.14 Operation of REO Property ...................................... ccli
Section 9.15 Sale of REO Property ........................................... cclv
Section 9.16 Realization on Collateral Security ............................. cclvi
Section 9.17 Reserved ....................................................... cclvi
Section 9.18 Reserved ....................................................... cclvi
Section 9.19 Reserved ....................................................... cclvi
Section 9.20 Merger or Consolidation ........................................ cclvi
Section 9.21 Resignation of Special Servicer ................................ cclvi
Section 9.22 Assignment or Delegation of Duties by Special Servicer ......... cclviii
Section 9.23 Limitation on Liability of the Special Servicer and
Others ......................................................... cclviii
Section 9.24 Indemnification; Third-Party Claims ............................ cclxi
Section 9.25 Reserved ....................................................... cclxii
Section 9.26 Special Servicer May Own Certificates .......................... cclxii
Section 9.27 Tax Reporting .................................................. cclxiii
Section 9.28 Application of Funds Received .................................. cclxiii
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions ..................................................... cclxiii
Section 9.30 Termination .................................................... cclxiii
Section 9.31 Procedure Upon Termination ..................................... cclxvi
Section 9.32 Certain Special Servicer Reports ............................... cclxvii
iv
Section 9.33 Special Servicer to Cooperate with the Master Servicer, the
Trustee and Paying Agent ....................................... cclxx
Section 9.34 Reserved ....................................................... cclxxi
Section 9.35 Litigation Control ............................................. cclxxi
Section 9.36 Sale of Defaulted Mortgage Loans ............................... cclxxiii
Section 9.37 Operating Adviser; Elections ................................... cclxxvi
Section 9.38 Limitation on Liability of Operating Adviser ................... cclxxvii
Section 9.39 Duties of Operating Adviser .................................... cclxxvii
Section 9.40 Rights of the Holder of a B Note ............................... cclxxix
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans ................................................. cclxxxi
Section 10.2 Procedure Upon Termination of Trust ............................ cclxxxiii
Section 10.3 Additional Trust Termination Requirements ...................... cclxxxiv
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders ................................ cclxxxv
Section 11.2 Access to List of Holders ...................................... cclxxxvi
Section 11.3 Acts of Holders of Certificates ................................ cclxxxvii
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration ........................................... cclxxxviii
Section 12.2 Prohibited Transactions and Activities ......................... ccxciii
Section 12.3 Modifications of Mortgage Loans ................................ ccxciii
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status ......................................................... ccxciv
Section 12.5 Class A-4FL Grantor Trust, Class A-MFL Grantor Trust and
Excess Interest Grantor Trust .................................. ccxciv
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness .......................... ccxcv
Section 13.2 Information to be Provided by the Master Servicer, the
Special Servicer, any Primary Servicer and the Paying Agent .... ccxcvi
Section 13.3 Filing Obligations ............................................. ccxcvii
Section 13.4 Form 10-D Filings .............................................. ccxcvii
Section 13.5 Form 10-K Filings .............................................. ccxcix
Section 13.6 Xxxxxxxx-Xxxxx Certification ................................... cccii
Section 13.7 Form 8-K Filings ............................................... ccciii
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings; Amendments
to Exchange Act Reports ........................................ cccv
v
Section 13.9 Annual Compliance Statements ................................... cccvi
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria ....................................................... cccvii
Section 13.11 Annual Independent Public Accountants' Servicing
Report ......................................................... cccix
Section 13.12 Indemnification ................................................ cccx
Section 13.13 Amendments ..................................................... cccxii
Section 13.14 Exchange Act Report Signatures ................................. cccxii
Section 13.15 Termination of the Paying Agent and Sub-Servicers .............. cccxiii
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement .................................... cccxiii
Section 14.2 Entire Agreement ............................................... cccxiii
Section 14.3 Amendment ...................................................... cccxiv
Section 14.4 GOVERNING LAW .................................................. cccxvi
Section 14.5 Notices ........................................................ cccxvi
Section 14.6 Severability of Provisions ..................................... cccxvii
Section 14.7 Indulgences; No Waivers ........................................ cccxvii
Section 14.8 Headings Not to Affect Interpretation .......................... cccxvii
Section 14.9 Benefits of Agreement .......................................... cccxvii
Section 14.10 Special Notices to the Rating Agencies ......................... cccxviii
Section 14.11 Counterparts ................................................... cccxix
Section 14.12 Intention of Parties ........................................... cccxx
Section 14.13 Recordation of Agreement ....................................... cccxxi
Section 14.14 Rating Agency Monitoring Fees .................................. cccxxi
Section 14.15 Acknowledgement by Primary Servicer ............................ cccxxi
vi
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-2 Certificate
EXHIBIT A-4 Form of Class A-3 Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-4FL Certificate
EXHIBIT A-7 Form of Class A-MFL Certificate
EXHIBIT A-8 Form of Class A-J Certificate
EXHIBIT A-9 Form of Class B Certificate
EXHIBIT A-10 Form of Class C Certificate
EXHIBIT A-11 Form of Class D Certificate
EXHIBIT A-12 Form of Class E Certificate
EXHIBIT A-13 Form of Class F Certificate
EXHIBIT A-14 Form of Class G Certificate
EXHIBIT A-15 Form of Class H Certificate
EXHIBIT A-16 Form of Class J Certificate
EXHIBIT A-17 Form of Class K Certificate
EXHIBIT A-18 Form of Class L Certificate
EXHIBIT A-19 Form of Class M Certificate
EXHIBIT A-20 Form of Class N Certificate
EXHIBIT A-21 Form of Class O Certificate
EXHIBIT A-22 Form of Class P Certificate
EXHIBIT A-23 Form of Class Q Certificate
EXHIBIT A-24 Form of Class R-I Certificate
EXHIBIT A-25 Form of Class R-II Certificate
EXHIBIT A-26 Form of Class R-III Certificate
EXHIBIT A-27 Form of Class X-1 Certificate
EXHIBIT A-28 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))
i
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 I (MSMC)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a))
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Reserved
EXHIBIT V Reserved
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 Xxxxx Fargo primary servicing agreement (Section
8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 13.6)
EXHIBIT CC-1 Reporting Servicer Form of Performance Certification (Section
13.6)
EXHIBIT DD Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I MSMC Loan Schedule
SCHEDULE II Reserved
SCHEDULE III Reserved
SCHEDULE IV Reserved
SCHEDULE V Mortgage Loans for Which Disbursement of Earnouts and Holdbacks
to be processed by Special Servicer
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 Earn Out Reserves
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
ii
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XIII Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE XIV Servicing Criteria to be Addressed in Assessment of Compliance
SCHEDULE XV Additional Form 10-D Disclosure
SCHEDULE XVI Additional Form 10-K Disclosure
SCHEDULE XVII Form 8-K Disclosure Information
SCHEDULE XVIII Additional Disclosure Notification
SCHEDULE XIX Seller Sub-Servicers
iii
THIS POOLING AND SERVICING AGREEMENT is dated as of November 1, 2006
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), LNR PARTNERS, INC., as
special servicer (the "Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION, as
trustee of the Trust (the "Trustee") and custodian and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, only in its capacity as paying agent (the "Paying Agent"),
authenticating 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"), 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; (iii) the REMIC III Certificates, the Class A-4FL Regular Interest
and the Class A-MFL Regular Interest as consideration for its transfer of the
REMIC II Regular Interests to the Trust; (iv) the Class Q 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"); (v) the Class A-4FL Certificates as consideration for its transfer of
the Class A-4FL Regular Interest and the Class A-4FL Swap Contract to the Trust;
and (vi) the Class A-MFL Certificates as consideration for its transfer of the
Class A-MFL Regular Interest and the Class A-MFL Swap Contract to the Trust. The
Depositor has duly authorized the execution and delivery of this Agreement to
provide for the foregoing and the issuance of (A) the REMIC I Regular Interests
and the Class R-I Certificates representing in the aggregate the entire
beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and the
Class R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II, (C) the REMIC III Certificates and the Class A-4FL
Regular Interest and the Class A-MFL Regular Interest representing in the
aggregate the entire beneficial ownership of REMIC III, (D) the Class Q
Certificates representing in the aggregate the entire beneficial interest in the
Excess Interest Grantor Trust, (E) the Class A-4FL Certificates representing in
the aggregate the entire beneficial ownership of the Class A-4FL Grantor Trust,
and (F) the Class A-MFL Certificates representing in the aggregate the entire
beneficial ownership of the Class A-MFL 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 III Regular Certificates, the Residual Certificates, the Class Q
Certificates, the Class A-4FL Certificates, the Class A-4FL Regular Interest,
the Class A-MFL Certificates, the Class A-MFL Regular Interest and the Swap
Counterparty. The parties hereto are entering into this Agreement, and the
Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-MFL, Class A-J, Class B, Class C and Class
D Certificates (collectively, the "Registered Certificates") will be offered for
sale pursuant to the prospectus (the "Prospectus") dated March 14, 2006, as
supplemented by a free writing prospectus dated October 19, 2006, as further
supplemented by the free writing prospectuses dated October 31, 2006 and as
further supplemented by the free writing prospectuses dated November 1, 2006
(together the "Free Writing Prospectus", and together with the Prospectus, the
"Preliminary Prospectus Supplement"), and as further supplemented by the final
prospectus supplement dated November 1, 2006 (the "Prospectus Supplement", and
together with the Prospectus, the "Final Prospectus Supplement"), and the Class
X-1, Class X-2, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P and Class Q Certificates will be offered for
sale pursuant to a Private Placement Memorandum dated November 1, 2006.
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
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.
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").
ii
CORRESPONDING
CORRESPONDING INITIAL REMIC II COMPONENTS OF
INITIAL CLASS REMIC II REGULAR INTEREST CLASS X-1
CORRESPONDING CERTIFICATE REGULAR CERTIFICATE OR CLASS X-2
CERTIFICATES BALANCE INTERESTS (1) BALANCE CERTIFICATES (1)
------------- ------------- ------------- ---------------- ----------------
Class A-1 $ 41,800,000 A-1-1 $ 4,616,000 X-0-0
X-0-0 $ 37,184,000 A-1-2
Class A-1A $ 90,658,000 A-1A-1 $ 72,000 A-1A-1
A-1A-2 $ 3,355,000 A-1A-2
A-1A-3 $ 3,817,000 A-1A-3
A-1A-4 $ 3,741,000 A-1A-4
A-1A-5 $ 3,615,000 A-1A-5
A-1A-6 $ 3,558,000 A-1A-6
A-1A-7 $ 72,500,000 A-1A-7
Class A-2 $ 88,100,000 A-2-1 $ 18,175,000 X-0-0
X-0-0 $ 65,075,000 A-2-2
A-2-3 $ 4,850,000 A-2-3
Class A-3 $ 62,900,000 A-3 $ 62,900,000 A-3
Class A-4 $610,249,000 A-4-1 $ 43,941,000 X-0-0
X-0-0 $ 41,097,000 A-4-2
A-4-3 $ 38,495,000 A-4-3
A-4-4 $486,716,000 A-4-4
Class A-4FL $150,000,000(2) A-4FL-1 $ 10,801,000 X-0XX-0
X-0XX-0 $ 10,102,000 X-0XX-0
X-0XX-0 $ 9,462,000 X-0XX-0
X-0XX-0 $119,635,000 A-4FL-4
ClassA-MFL $149,101,000(3) A-MFL $149,101,000 A-MFL
Class A-J $119,281,000 A-J $119,281,000 A-J
Class B $ 31,684,000 B $ 31,684,000 B
Class C $ 16,774,000 C-1 $ 2,693,000 C-1
C-2 $ 14,081,000 C-2
Class D $ 22,365,000 D-1 $ 2,548,000 X-0
X-0 $ 19,817,000 D-2
Class E $ 16,774,000 E $ 16,774,000 E
Class F $ 18,638,000 F-1 $ 13,025,000 F-1
F-2 $ 5,613,000 F-2
Class G $ 18,637,000 G-1 $ 4,128,000 G-1
G-2 $ 14,509,000 G-2
Class H $ 13,047,000 H $ 13,047,000 H
Class J $ 5,591,000 J $ 5,591,000 J
Class K $ 3,727,000 K $ 3,727,000 K
Class L $ 3,728,000 L-1 $ 779,000 X-0
X-0 $ 2,949,000 L-2
Class M $ 3,728,000 M $ 3,728,000 M
Class N $ 1,863,000 N $ 1,863,000 N
Class O $ 5,592,000 O $ 5,592,000 O
Class P $ 16,773,944 P $ 16,773,944 P
(1) The REMIC II Regular Interests and the Components of the Class X-1 and Class
X-2 Certificates that correspond to any particular Class of Principal Balance
Certificates also
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correspond to each other and, accordingly, constitute the "CORRESPONDING REMIC
II REGULAR INTEREST" and the "CORRESPONDING COMPONENTS," respectively, with
respect to each other.
(2) Each of REMIC II Regular Interest A-4FL-1, REMIC II Regular Interest
A-4FL-2, REMIC II Regular Interest A-4FL-3 and REMIC II Regular Interest A-4FL-4
corresponds to the Class A-4FL Regular Interest which has an initial Certificate
Balance of $150,000,000
(3) REMIC II Regular Interest A-MFL corresponds to the Class A-MFL Regular
Interest, having an initial Certificate Balance of $149,101,000
REMIC III
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates (or, in the
case of the Class A-4FL Certificates or the Class A-MFL Certificates, the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest, respectively,
represented thereby) comprising the interests in REMIC III created hereunder.
REMIC III INITIAL AGGREGATE
INTEREST INITIAL PASS- CERTIFICATE BALANCE FINAL SCHEDULED
DESIGNATION THROUGH RATE(a) OR NOTIONAL AMOUNT DISTRIBUTION DATE(b)
--------------- --------------- ------------------- --------------------
Class A-1 5.131% $ 41,800,000 4/12/2011
Class A-1A 5.380% $ 90,658,000 10/12/2016
Class A-2 5.283% $ 88,100,000 11/12/2011
Class A-3 5.317% $ 62,900,000 1/12/2016
Class A-4 5.328% $ 610,249,000 10/12/2016
Class A-4FL (c) 5.328% $ 150,000,000 10/12/2016
Class A-MFL (d) 5.360% $ 149,101,000 10/12/2016
Class A-J 5.389% $ 119,281,000 10/12/2016
Class B 5.448% $ 31,684,000 10/12/2016
Class C 5.478% $ 16,774,000 10/12/2016
Class D 5.547% $ 22,365,000 10/12/2016
Class E 5.606% $ 16,774,000 10/12/2016
Class F 5.803% $ 18,638,000 10/12/2016
Class G 5.824% $ 18,637,000 10/12/2016
Class H 5.890% $ 13,047,000 10/12/2016
Class J 5.055% $ 5,591,000 10/12/2016
Class K 5.055% $ 3,727,000 10/12/2016
Class L 5.055% $ 3,728,000 11/12/2016
Class M 5.055% $ 3,728,000 11/12/2016
Class N 5.055% $ 1,863,000 2/12/2017
Class O 5.055% $ 5,592,000 2/12/2017
Class P 5.055% $ 16,773,944 10/12/2021
Class X-1 0.047% $1,491,010,944 10/12/2021
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REMIC III INITIAL AGGREGATE
INTEREST INITIAL PASS- CERTIFICATE BALANCE FINAL SCHEDULED
DESIGNATION THROUGH RATE(A) OR NOTIONAL AMOUNT DISTRIBUTION DATE(B)
--------------- --------------- ------------------- --------------------
Class X-2 0.503% $1,458,366,000 11/12/2012
Class R-III(e) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (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 Class G, Class H and Class X 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 A-4FL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-4FL Grantor
Trust, which is comprised of (i) the Class A-4FL Regular Interest (bearing
a fixed rate of interest at 5.328% per annum) and the Class A-4FL Swap
Contract and all payments under the Class A-4FL Regular Interest and the
Class A-4FL Swap Contract, (ii) all funds and assets on deposit from time
to time in the Class A-4FL Floating Rate Account and (iii) proceeds of all
of the foregoing. The parties intend that the portion of the Trust
representing the Class A-4FL Grantor Trust shall be treated as a grantor
trust under Subpart E of Part 1 of Subchapter J of Chapter 1 of Subtitle A
of the Code.
(d) The Class A-MFL Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-MFL Grantor
Trust, which is comprised of (i) the Class A-MFL Regular Interest (bearing
a fixed rate of interest at 5.360% per annum, subject to a cap equal to the
Weighted Average REMIC I Net Mortgage Rate) and the Class A-MFL Swap
Contract and all payments under the Class A-MFL Regular Interest and the
Class A-MFL Swap Contract, (ii) all funds and assets on deposit from time
to time in the Class A-MFL Floating Rate Account and (iii) proceeds of all
of the foregoing. The parties intend that the portion of the Trust
representing the Class A-MFL Grantor Trust shall be treated as a grantor
trust under Subpart E of Part 1 of Subchapter J of Chapter 1 of Subtitle A
of the Code.
(e) 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 REMIC III Regular Interests 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 $1,491,010,945.
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 and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
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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 III 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.
EXCESS INTEREST GRANTOR TRUST, CLASS A-MFL GRANTOR TRUST AND CLASS A-4FL
GRANTOR TRUST
The parties intend that the portions of the Trust consisting of (i)
Excess Interest and the Excess Interest Sub-account (such portion of the Trust,
the "Excess Interest Grantor Trust"), (ii) the segregated pool of assets
consisting of the Class A-4FL Regular Interest, the Class A-4FL Swap Contract
and the Class A-4FL Floating Rate Account (such portion of the Trust, the "Class
A-4FL Grantor Trust") and (iii) the segregated pool of assets consisting of the
Class A-MFL Regular Interest, the Class A-MFL Swap Contract and the Class A-MFL
Floating Rate Account (such portion of the Trust, the "Class A-MFL Grantor
Trust") will each be treated as a separate grantor trust under Subpart E of Part
1 of Subchapter J of the Code. The Class Q Certificates represent pro rata
undivided beneficial interests in the Excess Interest Grantor Trust and will
have no Certificate Balance and no Pass-Through Rate. The Class A-4FL
Certificates represent pro rata undivided beneficial interests in the Class
A-4FL Grantor Trust. The Class A-MFL Certificates represent pro rata undivided
beneficial interests in the Class A-MFL Grantor Trust.
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 Loan, the mortgage
note (or notes) included in the Trust that is senior in right of payment to the
related B Note or any other related subordinated note(s) to the extent set forth
in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of the Certificate Account (but which are not included in the
Trust) created and maintained by the 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 Sony Pictures Plaza A/B Mortgage Loan,
the Waterside Shops A/B Mortgage Loan or any other Mortgage Loan serviced under
this Agreement that is divided into a senior mortgage note and one or more
subordinated mortgage note(s), which senior mortgage note is included in the
Trust. References herein to an A/B
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Mortgage Loan shall be construed to refer to the aggregate indebtedness under
the related A Note and the related subordinate note(s).
"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 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 Certificate Interest will be calculated on the basis
of a 360-day year consisting of twelve 30-day months, except in the case of the
Class A-4FL Certificates and the Class A-MFL Certificates, where, subject to
Section 6.12, it will be calculated on the basis of the actual number of days
elapsed in the related Interest Accrual Period and a 360 day year.
"ACCRUED COMPONENT INTEREST" means, with respect to each Component of
the Class X-1 or Class X-2 Certificates for any Distribution Date, one month's
interest at the Class X-1 Strip Rate or the Class X-2 Strip Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360 basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan and Loan Pair
and any Loan Group).
"ADDITIONAL DISCLOSURE NOTIFICATION" means the form of notification to
be included with any Additional Form 10-D Disclosure, Additional Form 10-K
Disclosure or Form 8-K Disclosure Information which is attached hereto as
Schedule XVIII.
"ADDITIONAL FORM 10-D DISCLOSURE" has the meaning set forth in Section
13.4.
"ADDITIONAL FORM 10-K DISCLOSURE" has the meaning set forth in Section
13.5.
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL SERVICER" means each Affiliate of the Master Servicer,
MSMC, the Paying Agent, the Depositor or any of the Underwriters that Services
any of the Mortgage Loans and each Person, other than the Special Servicer, who
is not an Affiliate of the Master Servicer, MSMC, the Paying Agent, the
Depositor or any of the Underwriters, and who Services 10% or
vii
more of the Mortgage Loans (based on their Principal Balance). For clarification
purposes, the Paying Agent is an Additional Servicer and the Trustee is not an
Additional Servicer.
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees; (ii) Advance
Interest that cannot be paid from Late Fees and default interest in accordance
with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the
Special Servicer, any applicable Non-Serviced Mortgage Loan Master Servicer, any
applicable Non-Serviced Mortgage Loan Special Servicer, any Primary Servicer,
the Trustee, the Paying Agent (or any other Person) pursuant to the terms of
this Agreement; (iv) to the extent not otherwise paid, any federal, state, or
local taxes imposed on the Trust or its assets and paid from amounts on deposit
in the Certificate 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 Master Servicer (or
Special Servicer) 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 in accordance with the terms
of the related Intercreditor Agreement. Notwithstanding anything to the
contrary, "Additional Trust Expenses" shall not include allocable overhead of
the Master Servicer, the Special Servicer, any Non-Serviced Mortgage Loan Master
Servicer, any Non-Serviced Mortgage Loan Special Servicer, the Trustee, the
Authenticating Agent, the Custodian, the Paying Agent or the Certificate
Registrar, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses, and similar internal
costs and expenses.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage Loan,
the sum of the Master Servicing Fee Rate, the Primary 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.
"ADVANCE INTEREST" means interest payable to the Master Servicer, the
Special Servicer or the Trustee 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, any Non-Serviced Mortgage Loan
Trustee or any Non-Serviced Mortgage Loan Fiscal Agent 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.
viii
"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 any of the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust or the
Excess Interest Grantor Trust as a grantor trust or (ii) result in the
imposition of a tax upon the income of any of the Class A-4FL Grantor Trust, the
A-MFL Grantor Trust or the Excess Interest Grantor Trust or any of their
respective 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 REMIC III Regular Interests (other than the
Class X-1 and Class X-2 Certificates), 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
(other than the Class X-1 and Class X-2 Certificates), Aggregate Certificate
Balance shall mean the aggregate of the Certificate Balances of all Certificates
or Interests, as the case may be, of that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to each ARD Loan, 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.
ix
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, A/B
Mortgage Loan 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 of (i) the
Scheduled Principal Balance of such Mortgage Loan, Loan Pair or A/B Mortgage
Loan (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
Master Servicer or the Trustee, all accrued and unpaid interest on such Mortgage
Loan, Loan Pair or A/B Mortgage Loan at a per annum rate equal to the Mortgage
Rate, (iii) all unreimbursed Advances (including Unliquidated Advances) and
interest on Advances (other than Unliquidated Advances) at the Advance Rate with
respect to such Mortgage Loan, Loan Pair or A/B Mortgage Loan, and (iv) to the
extent funds on deposit in any applicable Escrow Accounts are not sufficient
therefor, and to the extent not previously advanced by the Master Servicer, the
Special Servicer or the Trustee, all currently due and unpaid real estate taxes
and assessments, insurance premiums and, if applicable, ground rents and other
amounts which were required to be deposited in any Escrow Account (but were not
deposited) in respect of such Mortgaged Property or REO Property, as the case
may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of
such Mortgaged Property or REO Property as determined by such Appraisal or
internal valuation, as the case may be, plus the full amount of any escrows held
by or on behalf of the Trustee as security for the Mortgage Loan, Loan Pair or
A/B Mortgage Loan (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 annually based on
subsequent Appraisals, internal valuations or updates. In addition, the
Operating Adviser (including, without limitation, any request of a B Note
holder, at its expense and to the extent provided for in the related
Intercreditor Agreement, with respect to the related A/B Mortgage Loan (or
Operating Adviser on their behalf) if there shall have been a determination that
such holder will no longer be the directing holder) may at any time request the
Special Servicer to obtain, at the Operating Adviser's expense, an updated
Appraisal, with a corresponding adjustment to the amount of the Appraisal
Reduction. Any Appraisal Reduction for any Mortgage Loan, Loan Pair or A/B
Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the
Required Appraisal Loan, Loan Pair or A/B Mortgage Loan.
x
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan, Loan Pair or A/B Mortgage Loan is brought current under the then
current terms of the Mortgage Loan, Loan Pair or A/B Mortgage Loan for at least
three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan, Loan Pair or A/B Mortgage Loan 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 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 allocated first to the related B
Note (or, if there is more than one subordinated note, as set forth in the
related Intercreditor Agreement), up to the Principal Balance thereof, and any
excess shall be allocated to the related A Note.
"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
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.
"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 Balloon 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
xi
Due Date therefor as of which such Balloon 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 Balloon 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 Balloon Mortgage Loan or such B Note granted or agreed to by
the 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 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 the following amounts (a)
all amounts on deposit in the Distribution Account as of the commencement of
business on such Distribution Date that represent payments and other collections
on or in respect of the Mortgage Loans and any REO Properties that were received
by the Master Servicer 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
Master Servicer in respect of unpaid Master Servicing Fees, any Primary Servicer
in respect of unpaid Primary 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
xii
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 Master Servicer or the Trustee
for such Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the
aggregate amount of any Compensating Interest payments made by the Master
Servicer for such Distribution Date pursuant to the terms hereof, and (iii) if
such Distribution Date occurs in March of any year, commencing March 2007 or on
the final Distribution Date, 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.
"BANKING DAY" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates (except for the Class
A-4FL Certificates and the Class A-MFL Certificates), the Class A-4FL Regular
Interest and the Class A-MFL Regular Interest, a fraction (A) whose numerator is
the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate
on that Class of Certificates, the Class A-4FL Regular Interest or the Class
A-MFL Regular Interest and (ii) the Discount Rate used in calculating the
Prepayment Premium with respect to the
xiii
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;
provided, however, that if the Discount Rate referred to above is greater than
or equal to the Mortgage Rate on the related Mortgage Loan, but is less than the
Pass-Through Rate on that Class of Certificates, the Class A-4FL Regular
Interest or the Class A-MFL Regular Interest, then the Base Interest Fraction
shall be equal to 1.0.
"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 set forth 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, Miami Beach, Florida or the principal cities in which the Special
Servicer, the Trustee, the Custodian, the Paying Agent or the 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, Miami Beach, Florida 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. The 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 Master Servicer),
of each Cash Liquidation.
"CATEGORY 1 REQUEST" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are defined in any applicable Primary
Servicing Agreement.
"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 Master Servicer (or any Sub-Servicer or any Primary
Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a), each of
which shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class Q Certificates, the Class X Certificates and the Residual
Certificates) or Interest (other than the Residual Certificates) 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
xiv
as ascribed thereto in the Preliminary Statement hereto (in the case of an
Interest), minus (A)(i) the amount of all principal distributions previously
made with respect to such Certificate pursuant to Section 6.5(a) or deemed to
have been made with respect to such Interest pursuant to Section 6.2 or Section
6.3(a), as the case may be, and (ii) all Realized Losses allocated or deemed to
have been allocated to such Interest or Certificate in reduction of Certificate
Balance pursuant to Section 6.6, plus (B) an amount equal to the amounts
identified in clause (I)(C) of the definition of Principal Distribution Amount
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.
"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 A-4FL Certificates, the Class A-MFL Certificates, the Class Q
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section 13.6 and
shall also include such parties in an Other Securitization.
"CERTIFYING PERSON" has the meaning set forth in Section 13.6.
"CERTIFYING SERVICER" has the meaning set forth in Section 13.9.
"CHERRY CREEK COMPANION LOAN" means the loan that is secured by the
Cherry Creek Pari Passu Mortgage on a pari passu basis with the Cherry Creek
Pari Passu Loan. The Cherry Creek Companion Loan is not a "Mortgage Loan".
"CHERRY CREEK LOAN GROUP" means, collectively, the Cherry Creek Pari
Passu Loan and the Cherry Creek Companion Loan.
"CHERRY CREEK PARI PASSU LOAN" means Mortgage Loan No. 25, which is
secured on a pari passu basis with the Cherry Creek Companion Loan pursuant to
the Cherry Creek Pari Passu Mortgage.
"CHERRY CREEK PARI PASSU MORTGAGE" means the mortgage securing the
Cherry Creek Loan Group.
xv
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests, REMIC III Certificates, Class A-4FL Regular Interest, Class A-4FL
Certificates, Class A-MFL Regular Interest or Class A-MFL Certificates, any
Class of such Certificates or Interests.
"CLASS A-4FL AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-4FL Regular Interest received by the Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-4FL Regular
Interest pursuant to the Class A-4FL Swap Contract, including, but not limited
to, any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-4FL
Regular Interest for so long as the Class A-4FL Swap Contract is in effect; and
(b) all amounts required to be paid to the Swap Counterparty in respect of the
Class A-4FL Regular Interest pursuant to the Class A-4FL Swap Contract.
"CLASS A-4FL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-4FL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in December 2006, by the Master
Servicer on behalf of the Trustee to the Swap Counterparty pursuant to the Class
A-4FL Swap Contract at a rate equal to the Pass-Through Rate of the Class A-4FL
Regular Interest on the Class A-4FL Floating Rate Certificate Notional Amounts
subject to reduction in accordance with the Class A-4FL Swap Contract.
"CLASS A-4FL FLOATING RATE ACCOUNT" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Master Servicer
on behalf of the Trustee with respect to the Class A-4FL Certificates, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2006-HQ10, Floating Rate Account, Class A-4FL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2006-HQ10, Floating Rate Account, Class A-4FL", respectively; provided,
that the Class A-4FL Floating Rate Account may be a subaccount of the
Distribution Account or the Certificate Account. The Class A-4FL Floating Rate
Account shall be an asset of the Class A-4FL Grantor Trust.
"CLASS A-4FL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-4FL Regular
Interest.
"CLASS A-4FL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-4FL Regular Interest and the Class A-4FL Swap
Contract and all payments under the Class A-4FL Regular Interest and the Class
A-4FL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-4FL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-4FL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-4FL Swap Contract
is in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in
xvi
respect of the Class A-4FL Regular Interest pursuant to the terms of the Class
A-4FL Swap Contract during the related Interest Accrual Period and (ii) amounts
in respect of interest (including reimbursement of any Prepayment Interest
Shortfalls) received on the Class A-4FL Regular Interest not required to be paid
to the Swap Counterparty (which will arise due to the netting provisions of the
Class A-4FL Swap Contract or upon the termination or expiration of the Class
A-4FL Swap Contract). If the Swap Counterparty defaults on its obligation to pay
such interest to the Paying Agent, or if a Swap Default occurs and is continuing
or if the Class A-4FL Swap Contract is terminated, the Class A-4FL Interest
Distribution Amount will be an amount equal to the Distributable Certificate
Interest in respect of the Class A-4FL Regular Interest, until such time as the
Swap Default is cured, or such obligation is paid, as the case may be, or until
a replacement Class A-4FL Swap Contract is obtained.
"CLASS A-4FL NET SWAP PAYMENT" has the meaning set forth in Section
8.31(g).
"CLASS A-4FL PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-4FL Regular Interest on such Distribution Date.
"CLASS A-4FL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-4FL Certificates, and which has a Pass-Through Rate equal to 5.328% per
annum.
"CLASS A-4FL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of November 1, 2006, between the Swap Counterparty and the Trust, and
the Credit Support Annex (as defined in the Class A-4FL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-4FL SWAP COUNTERPARTY COLLATERAL ACCOUNT" has the meaning set
forth in Section 8.31(f).
"CLASS A-MFL AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-MFL Regular Interest received by the Paying Agent (or the Master Servicer on
the Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-MFL Regular
Interest pursuant to the Class A-MFL Swap Contract, including, but not limited
to, any termination payment, but in the case of both (i) and (ii) excluding the
following: (a) all amounts of Prepayment Premiums allocated to the Class A-MFL
Regular Interest for so long as the Class A-MFL Swap Contract is in effect; and
(b) all amounts required to be paid to the Swap Counterparty in respect of the
Class A-MFL Regular Interest pursuant to the Class A-MFL Swap Contract.
"CLASS A-MFL FIXED INTEREST DISTRIBUTION" means with respect to the
Class A-MFL Regular Interest, the payments of interest required to be made in
respect of each Distribution Date, commencing in December 2006, by the Master
Servicer on behalf of the Trustee to the Swap Counterparty pursuant to the Class
A-MFL Swap Contract at a rate equal to
xvii
the Pass-Through Rate of the Class A-MFL Regular Interest on the Class A-MFL
Floating Rate Certificate Notional Amounts subject to reduction in accordance
with the Class A-MFL Swap Contract.
"CLASS A-MFL FLOATING RATE ACCOUNT" means the Eligible Account or
Accounts established and maintained by the Paying Agent and the Master Servicer
on behalf of the Trustee with respect to the Class A-MFL Certificates, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Xxxxxx Xxxxxxx Capital I Trust 2006-HQ10, Floating Rate Account, Class A-MFL"
and "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Trust 2006-HQ10, Class A-MFL Floating Rate Account, Class A-MFL", respectively;
provided, that the Class A-MFL Floating Rate Account may be a subaccount of the
Distribution Account or the Certificate Account. The Class A-MFL Floating Rate
Account shall be an asset of the Class A-MFL Grantor Trust.
"CLASS A-MFL FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a
notional amount equal to the Certificate Balance of the Class A-MFL Regular
Interest.
"CLASS A-MFL GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-MFL Regular Interest and the Class A-MFL Swap
Contract and all payments under the Class A-MFL Regular Interest and the Class
A-MFL Swap Contract, (ii) all funds and assets from time to time on deposit in
the Class A-MFL Floating Rate Account and (iii) proceeds of all of the
foregoing.
"CLASS A-MFL INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Class A-MFL Swap Contract
is in effect, the aggregate amount of interest received by the Paying Agent from
the Swap Counterparty in respect of the Class A-MFL Regular Interest pursuant to
the terms of the Class A-MFL Swap Contract during the related Interest Accrual
Period and (ii) amounts in respect of interest (including reimbursement of any
Prepayment Interest Shortfalls) received on the Class A-MFL Regular Interest not
required to be paid to the Swap Counterparty (which will arise due to the
netting provisions of the Class A-MFL Swap Contract or upon the termination or
expiration of the Class A-MFL Swap Contract). If the Swap Counterparty defaults
on its obligation to pay such interest to the Paying Agent, or if a Swap Default
occurs and is continuing or if the Class A-MFL Swap Contract is terminated, the
Class A-MFL Interest Distribution Amount will be an amount equal to the
Distributable Certificate Interest in respect of the Class A-MFL Regular
Interest, until such time as the Swap Default is cured, or such obligation is
paid, as the case may be, or until a replacement Class A-MFL Swap Contract is
obtained.
"CLASS A-MFL NET SWAP PAYMENT" has the meaning set forth in Section
8.32(g).
"CLASS A-MFL PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-MFL Regular Interest on such Distribution Date.
xviii
"CLASS A-MFL REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance equal to the Certificate Balance of the
Class A-MFL Certificates, and which has a Pass-Through Rate equal to the per
annum rate of the lesser of 5.360% and the Weighted Average REMIC I Net Mortgage
Rate in respect of each Distribution Date.
"CLASS A-MFL SWAP CONTRACT" means the interest rate Swap Contract,
dated as of November 1, 2006, between the Swap Counterparty and the Trust, and
the Credit Support Annex (as defined in the Class A-MFL Swap Contract) and the
Schedule to the related ISDA Master Agreement relating thereto.
"CLASS A-MFL SWAP COUNTERPARTY COLLATERAL ACCOUNT" has the meaning set
forth in Section 8.32(f).
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-1A Certificates, the Class A-2 Certificates, the Class A-3 Certificates,
the Class A-4 Certificates and the Class A-4FL Certificates, collectively.
"CLASS A-1 CERTIFICATES," "CLASS A-1A CERTIFICATES," "CLASS A-2
CERTIFICATES," "CLASS A-3 CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS A-4FL
CERTIFICATES," "CLASS A-MFL CERTIFICATES," "CLASS A-J CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N Certificates," "CLASS O
CERTIFICATES," "CLASS P CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS X-1
CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II
CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the Certificates designated as
"Class A-1," "Class A-1A," "Class A-2," "Class A-3," "Class A-4," "Class A-4FL,"
"Class A-MFL," "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," "Class X-1," "Class X-2," "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-1-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-1.
"CLASS A-1-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1-2.
"CLASS A-1A-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-1.
"CLASS A-1A-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1A Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A-2.
xix
"CLASS A-1A-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A-3.
"CLASS A-1A-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A-4.
"CLASS A-1A-5 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A-5.
"CLASS A-1A-6 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A-6.
"CLASS A-1A-7 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-1 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-1A-7.
"CLASS A-2-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-1.
"CLASS A-2-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-2.
"CLASS A-2-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-2 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-2-3.
"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
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-3.
"CLASS A-4-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-1.
"CLASS A-4-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-2.
"CLASS A-4-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-3.
xx
"CLASS A-4-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4 Certificates, which component represents
a Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-4-4.
"CLASS A-4FL-1 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4FL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4FL-1.
"CLASS A-4FL-2 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4FL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4FL-2.
"CLASS A-4FL-3 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4FL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4FL-3.
"CLASS A-4FL-4 COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-4FL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4FL-4.
"CLASS A-MFL COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-MFL Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-MFL.
"CLASS A-J COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest A-J.
"CLASS B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest B.
"CLASS C-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-1.
"CLASS C-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C-2.
"CLASS D-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-1.
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"CLASS D-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest D-2.
"CLASS E COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest E.
"CLASS F-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-1.
"CLASS F-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F-2.
"CLASS G-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-1.
"CLASS G-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest G-2.
"CLASS H COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H.
"CLASS J COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"CLASS K COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"CLASS L-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L-1.
"CLASS L-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class L Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest L-2.
"CLASS M COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
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"CLASS N COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"CLASS O COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"CLASS P COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to the Class X-1
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"CLASS X-1 STRIP RATE" means, with respect to any Class of Components
(other than Components that are also Class X-2 Components) for any Distribution
Date, a rate per annum equal to (i) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding Certificates. In the case of any Class of Components that are also
Class X-2 Components, (i) for any Distribution Date occurring on or before the
related Class X-2 Component Crossover Date, a rate per annum equal to, (x) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, minus (y)
the greater of (1) the rate per annum corresponding to such Distribution Date as
set forth in Schedule XIII 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" (i) with respect to the Class
A-1-2 Component, Class A-1A-2 Component, Class A-2-1 Component and Class L-1
Component, the Distribution Date occurring in November 2007; (ii) with respect
to the Class A-1A-3 Component, Class A-2-2 Component, Class G-1 Component, Class
H Component, Class J Component, Class K Component and Class L-2 Component, the
Distribution Date occurring in November 2008; (iii) with respect to the Class
A-1A-4 Component, Class A-2-3 Component, Class A-3 Component, Class A-4-1
Component, Class A-4FL-1 Component, Class F-1 Component and Class G-2 Component,
the Distribution Date occurring in November 2009; (iv) with respect to the Class
A-1A-5 Component, Class A-4-2 Component, Class A-4FL-2 Component, Class D-1
Component, Class E Component and Class F-2 Component, the Distribution Date
occurring in November 2010; (v) with respect to the Class A-1A-6 Component,
Class A-4-3 Component, Class A-4FL-3 Component, Class C-1 Component and Class
D-2 Component, the Distribution Date occurring in November 2011; and (vi) with
respect to the Class A-1A-7 Component, Class A-4-4 Component, Class A-4FL-4
Component, Class A-
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MFL Component, Class A-J Component, Class B Component and Class C-2 Component,
the Distribution Date occurring in November 2012.
"CLASS X-2 COMPONENTS" means each of the Class A-1-2 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-2-1
Component, Class A-2-2 Component, Class A-2-3 Component, Class A-3 Component,
Class A-4-1 Component, Class A-4-2 Component, Class A-4-3 Component, Class A-4-4
Component, Class A-4FL-1 Component, Class A-4FL-2 Component, Class A-4FL-3
Component, Class A-4FL-4 Component, Class A-MFL Component, Class A-J Component,
Class B Component, Class C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E Component, Class F-1 Component, Class
F-2 Component, Class G-1 Component, Class G-2 Component, Class H Component,
Class J Component, Class K Component, Class L-1 Component and Class L-2
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 XIII 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 Exchange Act, which initially shall be
the Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means November 9, 2006.
"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, 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
xxiv
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 Servicer and reasonably acceptable to the
Trustee, the Paying Agent, the Special Servicer, any Primary Servicer and the
majority certificateholder of the Controlling Class.
"CMSA ADVANCE RECOVERY REPORT" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"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" means the U.S. Securities and Exchange Commission.
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the excess of (A) Prepayment Interest Shortfalls incurred in
respect of the Mortgage Loans resulting from Principal Prepayments on such
Mortgage Loans (but not including any B Note, Non-Serviced Companion Mortgage
Loan or Serviced Companion Mortgage Loan) during the related Collection Period
over (B) the aggregate of the Prepayment Interest Excesses received in respect
of the Mortgage Loans serviced by the Master Servicer resulting from Principal
Prepayments on such Mortgage Loan (but not including any B Note, Non-Serviced
Companion Mortgage Loan or Serviced Companion Mortgage Loan) during the same
related Collection Period. Notwithstanding the foregoing, such Compensating
Interest shall not (i) exceed the portion of the aggregate Master Servicing Fee
accrued at a rate per annum equal to 2 basis points for the related Collection
Period calculated in respect of the Mortgage Loans including REO Mortgage Loans
(but not including any B Notes, Non-Serviced Companion Mortgage Loan or Serviced
Companion Mortgage Loan), plus any investment income earned on the amount
prepaid prior to such Distribution Date, if the Master Servicer applied the
subject Principal Prepayment in accordance with the terms of the related
Mortgage
xxv
Loan documents and (ii) be required to be paid on any Prepayment Interest
Shortfalls to the extent incurred in respect of any Specially Serviced Mortgage
Loans.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan 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 III
Regular Certificates, Class A-4FL Certificates or Class A-MFL 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 III Regular Certificates, Class A-4FL
Certificates or Class A-MFL Certificates outstanding. As of the Closing Date,
the Controlling Class will be the Class P Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the Securities Act.
"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 -- Xxxxxx
Xxxxxxx Capital I Inc., Series 2006-HQ10 and the office of the Certificate
Registrar is presently located for certificate transfer purposes at Xxxxx Fargo
Center, Sixth Street and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) -- Xxxxxx
Xxxxxxx Capital I Inc., Series 2006-HQ10, and for all other purposes at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS) -- Xxxxxx Xxxxxxx Capital I Inc., Series 2006-HQ10, 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 Servicer, the
Paying Agent and the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates (or in the
case of the Class A-4FL Certificates or the Class A-MFL Certificates, the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest, respectively) as set
forth in the Preliminary Statement with respect to any Corresponding Component
or any Corresponding REMIC II Regular Interest.
xxvi
"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 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 (or in the case of the
Class A-4FL Certificates or the Class A-MFL Certificates, the Class A-4FL
Regular Interest or the Class A-MFL Regular Interest, respectively).
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"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 the 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 November 1, 2006. 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 November 1, 2006, and
Scheduled Payments due in November 2006 with respect to Mortgage Loans not
having Due Dates on the first of each month have been deemed received on
November 1, 2006, not the actual day on which such Scheduled Payments were due.
"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, whether or not the Mortgage Loan has an interest only period that has
not expired as of the Cut-Off Date.
"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.
xxvii
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the United States Treasury obligations 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.
"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.
xxviii
"DETERMINATION DATE" means, with respect to any Distribution Date, the
8th day of the month in which such Distribution Date occurs or, if such day is
not a Business Day, the next succeeding Business Day, commencing December 8,
2006.
"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 a different term methodology or source is 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 Servicer will select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the 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 of Certificates (other than the Class A-4FL
Certificates, the Class A-MFL
xxix
Certificates, the Residual Certificates and the Class Q Certificates) or
Interests (including the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest, but not including the Residual Certificates), 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, plus (C) if the Aggregate
Certificate Balance is reduced because of a diversion of principal in accordance
with Section 5.2(a)(II)(iv), and there is a subsequent recovery of amounts as
set forth in Section 6.6(c)(i), then interest at the applicable Pass-Through
Rate that would have accrued and been distributable with respect to the amount
that the Aggregate Certificate Balance was so reduced, which interest shall
accrue from the date that the related Realized Loss is allocated through the end
of the Interest Accrual Period related to the Distribution Date on which such
amounts are subsequently recovered.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means, with respect to any Determination Date, the
4th Business Day after the related Determination Date, commencing December 14,
2006.
"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.
"XXXXX" means the Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-1" by Moody's and "F-1" by Fitch, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at xxxxx "X0" by Moody's and at least "AA-" by Fitch
(or "A-" by Fitch so long as the short-term unsecured debt obligations are rated
not less than "F-1" by Fitch), if the deposits are to be held in the account
more than 30 days or (ii) a segregated trust account or accounts maintained in
the trust department of the Trustee, the Paying Agent or other financial
institution having a combined capital and surplus of at least $50,000,000 and
subject to regulations regarding fiduciary funds on deposit similar to Title 12
of the Code of Federal Regulations Section 9.10(b) and whose long-term senior
unsecured debt obligations or other long-term deposits, or the Trustee's or
Paying Agent's parent's long-term senior unsecured debt obligations or other
long-term deposits, are rated at least "Baa3" by Moody's, 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 the 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, a wholly-owned subsidiary of Xxxxx Fargo & Co., provided
xxx
that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "P-1" in
the case of Moody's, and "F-1" in the case of Fitch, if the deposits are to be
held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "Aa2" in the case of Moody's and at least "A+" in
the case of Fitch, 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
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, 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 and "Prime-1" by Moody's 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 and
"Aa2" by Moody's or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as set
forth in this Agreement, such amounts are required to be withdrawn from the
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 the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
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(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 "Prime-1" by Moody's (or for which Rating Agency Confirmation
is obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that are rated in the highest long-term category by Fitch, or if not rated by
Fitch, then Fitch has issued a Rating Agency Confirmation, and the highest
long-term category by Moody's, or if not rated by Moody's, then Moody's has
issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and "Aa2" by Moody's (if rated by Fitch or, if not rated by Fitch, by
Moody's and another nationally recognized statistical rating organization), or
for which Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds (including those managed or advised
by the Paying Agent or its affiliates) that maintain a constant asset value and
that are rated "Aaa" (or its equivalent rating) by Moody's and "AAA" (or its
equivalent rating) by Fitch (if so rated by Fitch), and any other demand,
money-market or time deposit, or any other obligation, security or investment,
with respect to which Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the 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 Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible
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Investments shall be purchased at a price in excess of par. For the purpose of
this definition, units of investment funds (including money market funds) shall
be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (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 if such ARD Loan
is not prepaid in full on or before its Anticipated Repayment Date, the excess,
if any of (i) interest accrued at the rate of interest applicable to such
Mortgage Loan after such Anticipated Repayment Date (plus any interest on such
interest as may be provided for under the 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 is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
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"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 plus 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. In the case of a Serviced Pari
Passu Mortgage Loan, Excess Liquidation Proceeds means only the pro rata share
of such proceeds that are allocated to the Trust. In the case of an A/B Mortgage
Loan, Excess Liquidation Proceeds means only the pro rata share of such proceeds
that are allocated to the Trust.
"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 its successors and assigns as holder of
excess servicing rights, which fee shall accrue on the Scheduled Principal
Balance of each such Mortgage Loan immediately prior to the Due Date occurring
in each month at the per annum rate (determined in the same manner as the
applicable Mortgage Rate for such Mortgage Loan is determined for such month)
specified on the Mortgage Loan Schedule (the "Excess Servicing Fee Rate"). 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 ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"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.
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"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, Specially Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special Servicer in consultation with the
Operating Adviser and the Master Servicer (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 Special Servicer expects to
be finally recoverable on such Mortgage Loan, Serviced Companion Mortgage Loan
or B Note, without regard to any obligation of the Master Servicer, the Special
Servicer or the Trustee, 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 Master Servicer with prompt written notice of any
Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan upon making such determination. The Master 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 any "fiscal agent" appointed pursuant to Section
7.19.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"FORM 8-K DISCLOSURE INFORMATION" has the meaning set forth in Section
13.7.
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"FREE WRITING PROSPECTUS" has the meaning set forth in the Preliminary
Statement hereto.
"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.
"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 Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the 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 Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC Pool is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5), or (ii) any other Person (including the 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.
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"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 the Master Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the Securities 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(s) and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note(s) 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, a REMIC II Interest, the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest, as applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates (other than the Class A-4FL Certificates
and the Class A-MFL Certificates) and Interests (including the Class A-4FL
Regular Interest and the Class A-MFL Regular Interest, but not including 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
and with respect to the Class A-4FL Certificates and the Class A-MFL
Certificates, subject to Section 6.12, the period from (and including) the prior
Distribution Date (or the Closing Date, in the case
xxxvii
of the first such period) and ending on (and including) the day before the
current Distribution Date.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTEREST RESET DATE" means the day that is two Banking Days prior to
the start of the related Interest Accrual Period.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, 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 the 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.
"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 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.
Notwithstanding anything to the contrary in this Agreement, Late Fees relating,
and allocated, to any B Note in accordance with the related Intercreditor
Agreement (after being first applied to Advance Interest) shall be payable to
the Holder of the related B Note in accordance with the related Intercreditor
Agreement.
"LIBOR" means with respect to each Interest Accrual Period, the per
annum rate for deposits in U.S. dollars for a period of one month, which appears
on the Telerate page 3750 as the "London Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the arithmetic
xxxviii
mean of the offered quotations obtained by the Paying Agent from the principal
London office of four major banks in the London interbank market selected by the
Swap Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major banks in New York City, New York
selected by the Swap Counterparty at approximately 11:00 a.m. New York City time
on the first day of the Interest Accrual Period for loans in U.S. dollars to
leading European banks for a period of one month in an amount that is
representative for a single transaction in the relevant market at the relevant
time. LIBOR for the initial Interest Accrual Period is 5.32414%.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
enforcement and liquidation of any Specially Serviced Mortgage Loan or REO
Property acquired in respect thereof including, without limitation, reasonable
legal fees and expenses, appraisal fees, committee or referee fees, property
manager fees, and, if applicable, brokerage commissions and conveyance taxes for
such Specially Serviced Mortgage Loan. All Liquidation Expenses relating to
enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the 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 or portion thereof and any
Condemnation Proceeds and Insurance Proceeds received by the Trust (net of any
expenses incurred by the Special Servicer on behalf of the Trust in connection
with the collection of such Condemnation Proceeds and Insurance Proceeds) other
than Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds received
in connection with any Non-Serviced Mortgage Loan; provided, however, that (A)
in the case of a final disposition consisting of the repurchase of a Mortgage
Loan or REO Property by a Seller pursuant to Section 2.3, such fee will only be
paid by such Seller and due to the Special Servicer if repurchased after the
date that is 90 days (or 180 days, if the Seller is diligently attempting to
cure or correct the related Material Document Defect or Material Breach, as the
case may be, in accordance with the terms and conditions of Section 2.3(a)
hereof) or more after the Seller receives notice of the breach or defect causing
the repurchase and (B) in the case of a repurchase of a Mortgage Loan by a
related B Note holder or mezzanine lender, such fee will only be due to the
Special Servicer if repurchased 60 days after the Master Servicer, the Special
Servicer or the Trustee receives notice of the default causing the repurchase.
For the avoidance of doubt, a Liquidation Fee will be payable in connection with
a repurchase of (i) an A Note by the holder of the related B Note or (ii) a
Mortgage Loan by the holder of the related mezzanine loan, unless otherwise
specifically set forth in the related Intercreditor Agreement.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of
a Specially Serviced Mortgage Loan or related REO Property (net of Liquidation
Expenses). With
xxxix
respect to the mortgaged property or properties 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 will be
included in Liquidation Proceeds, and with respect to the mortgaged property or
properties securing any Loan Pair or A/B Mortgage Loan, only an allocable
portion of such Liquidation Proceeds will be distributable to the
Certificateholders.
"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 any 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 (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses but not including Special Servicing Fees)
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 and Liquidation Proceeds shall be applied
first to reimburse the Master Servicer, the Special Servicer and the Trustee, 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, 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 set forth
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as set forth in clause (A) above.
"LOAN GROUP" means either Loan Group 1 or Loan Group 2, as the case
may be.
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"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. There are no Loan Pairs in the
Trust.
"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).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or the applicable Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"LOSSES" has the meaning set forth in Section 12.4.
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"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 Xxxxx Fargo Bank, National Association and its
permitted successors or assigns.
"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
Master Servicer and in such media as may be agreed upon by the Master Servicer
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 to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means 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 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, 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 each 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 the 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).
xlii
"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.
"MICHIGAN PLAZA COMPANION LOAN" means the loan that is secured by the
Michigan Plaza Pari Passu Mortgage on a pari passu basis with the Michigan Plaza
Pari Passu Loan. The Michigan Plaza Companion Loan is not a "Mortgage Loan."
"MICHIGAN PLAZA PARI PASSU LOAN" means Mortgage Loan No. 9, which is
secured on a pari passu basis with the Michigan Plaza Companion Loan pursuant to
the Michigan Plaza Pari Passu Mortgage. The Michigan Plaza Pari Passu Loan is a
"Mortgage Loan".
"MICHIGAN PLAZA PARI PASSU MORTGAGE" means the mortgage securing the
Michigan Plaza Pari Passu Loan and the Michigan Plaza Companion Loan.
"MODIFICATION FEE" means a fee, if any, collected in connection with a
modification of any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note.
"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 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 date of such Distribution Date, and of the Record
Date, Interest Accrual Period, and Determination Date for such Distribution
Date; (ii) the Available Distribution Amount for the Distribution Date, and any
xliii
other cash flows received on the Mortgage Loans and applied to pay fees and
expenses (including the components of the Available Distribution Amount or such
other cash flows); (iii) the aggregate amount of servicing fees, Special
Servicing Fees, other special servicing compensation and Trustee Fees paid to
the Master Servicer, any Primary Servicer, the Special Servicer, the holders of
the rights to Excess Servicing Fees, the Trustee and the Paying Agent with
respect to the Mortgage Loans; (iv) the amount of other fees and expenses
accrued and paid from the Trust Fund, including without limitation Advance
reimbursement and interest on Advances, and specifying the purpose of such fees
or expenses and the party receiving payment of those amounts, if applicable; (v)
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; (vi) the amount of such distribution to holders of each Class
of Certificates allocable to (A) interest accrued (including Excess Interest) at
the respective Pass-Through Rates, less any Net Aggregate Prepayment Interest
Shortfalls and (B) Prepayment Premiums (including Prepayment Premiums
distributed in respect of the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest and paid to the Swap Counterparty); (vii) the amount of any
shortfall in principal distributions and any shortfall in interest distributions
to each applicable Class of Certificates; (viii) the amount of excess cash flow,
if any distributed to the holder of the Residual Certificates; (ix) the
Aggregate Certificate Balance or Notional Amount of each Class of Certificates
before and after giving effect to the distribution made on such Distribution
Date; (x) the Pass-Through Rate applicable to each Class of Certificates for
such Distribution Date; (xi) the Weighted Average Mortgage Rate (and interest
rates by distributional groups or ranges) of the Mortgage Loans as of the
related Determination Date; (xii) the number of outstanding Mortgage Loans and
the aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans and the weighted average remaining term at the close of business on such
Determination Date, with respect to the Mortgage Loans or with respect to each
Loan Group; (xiii) 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; (xiv)
the aggregate amount and general purpose of Servicing Advances and P&I Advances
outstanding, separately stated, that have been made by the Master Servicer, the
Special Servicer and the Trustee with respect to the Mortgage Loans and the
aggregate amount and general purpose of Servicing Advances and P&I Advances made
by the applicable Non-Serviced Mortgage Loan Master Servicer in respect of the
Non-Serviced Mortgage Loans; (xv) the number and related Principal Balances of
any Mortgage Loans modified, extended or waived on a loan-by-loan basis since
the previous Determination Date (including a description of any modifications,
extensions or waivers to mortgage loan terms, fees, penalties or payments during
the distribution period as provided to the Paying Agent); (xvi) 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; (xvii) 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 the Certificate Account, and (B) the
aggregate amount of other revenues collected by the Special Servicer with
respect to each REO Property during the related Collection Period and credited
to the Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (xviii) the aggregate amount of
Principal Prepayments
xliv
made during the related Collection Period with respect to the Mortgage Loans and
with respect to each Loan Group; (xix) 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 with respect to the Mortgage Loans
and with respect to each Loan Group; (xx) any Material Breaches of Mortgage Loan
representations and warranties of which the Trustee, the Master Servicer or the
Special Servicer has received written notice; and (xxi) 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); (xxii) the amounts received in
respect of the Class A-4FL Swap Contract and the Class A-MFL Swap Contract or
the amounts paid in respect of either Swap Contract and, if any of such amounts
are less than the full amount required to be paid under either Swap Contract,
the amount of the shortfall; (xxiii) the identification of any Rating Agency
Trigger Event or Swap Default as of the close of business on the last day of the
immediately preceding calendar month with respect to the Class A-4FL Swap
Contract and the Class A-MFL Swap Contract (including, if applicable, the notice
required by Section 6.12); (xxiv) the amount of any (1) payment by the Swap
Counterparty as a termination payment, (2) payment to any successor interest
rate swap counterparty to acquire a replacement interest rate swap agreement,
and (3) collateral posted in connection with any Rating Agency Trigger Event;
and (xxv) the amount of and identification of any payments on the Class A-4FL
Certificates or the Class A-MFL Certificates in addition to the amount of
principal and interest due thereon, such as any payment received in connection
with the related Swap Contract or any payment of a Prepayment Premium after the
termination of the related Swap Contract that is required to be distributed on
the Class A-4FL Certificates or Class A-MFL Certificates pursuant to the terms
of this Agreement. In the case of information furnished pursuant to subclauses
(v), (vi) and (ix) above, the amounts shall be expressed in the aggregate and as
a dollar amount per $1,000 of original principal amount of the Certificates for
all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-HQ10, without recourse, representation or warranty" or if the
original Mortgage Note is not included therein, then a lost note affidavit 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
xlv
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 Seller 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 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, or if any such original modification,
consolidation or 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 copies of such modifications,
consolidations or extensions certified by the Seller together with (A) in the
case of a delay caused by the public recording office, an Officer's Certificate
of the 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 (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), 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
2006-HQ10"; 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 submitted for recording or filing and instead, the Seller shall
take all actions as are necessary to cause the Trustee to be 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 and
shall deliver to the Special Servicer, the Trustee and the Custodian evidence
confirming that the Trustee is shown as the owner on the record of 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 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
xlvi
office, an Officer's Certificate of the 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 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
Seller to be a true and complete copy of the original 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 2006-HQ10," 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 Seller shall take all actions as are
necessary to cause the Trustee to be 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 and
shall deliver to the Special Servicer, the Custodian and the Trustee evidence
confirming that the Trustee is shown as the owner on the record of MERS;
(vii) the original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, 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 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
financing statements will be required to be recorded or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trustee to be
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 and shall deliver to the Special Servicer and the
Trustee and the Custodian evidence confirming that the Trustee is shown as the
owner on the record of MERS;
xlvii
(x) copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (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), if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the applicable Primary Servicer (or the Master Servicer), and applied,
drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable Primary
Servicing Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the applicable Primary Servicer (or the Master Servicer) on behalf of the
Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced or
released in accordance with documents evidencing or securing the applicable
Mortgage Loan, this Agreement and the applicable Primary Servicing Agreement (it
being understood that the 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) or a reissued letter of credit and (c) to indemnify the
Trust for any liabilities, charges, costs, fees or other expenses accruing from
the failure of the Seller to assign all rights in and to the letter of credit
hereunder including the right and power to draw on the letter of credit). In the
case of clause (B) above, any letter of credit held by the applicable Primary
Servicer (or the Master Servicer) acknowledges that any letter of credit held by
it shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or 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
applicable Primary Servicer (or Master Servicer). The applicable Primary
Servicer (or Master Servicer) shall indemnify the Trust for any loss caused by
the ineffectiveness of such assignment;
(xiii) the original or a copy of any 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;
xlviii
(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 I" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of November 1, 2006
with respect to the MSMC Loans, a form of which is attached hereto as Exhibit
K-1.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan, as such
schedule 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.
xlix
"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.
"MSMC 2006-HQ9 DEPOSITOR" means the "depositor" under the MSMC
2006-HQ9 Pooling and Servicing Agreement, which as of the Closing Date is Xxxxxx
Xxxxxxx Capital I Inc.
"MSMC 2006-HQ9 MASTER SERVICER" means the "master servicer" under the
MSMC 2006-HQ9 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxx Fargo Bank, National Association.
"MSMC 2006-HQ9 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement, dated as of August 1, 2006, by and between the MSMC
2006-HQ9 Depositor, the MSMC 2006-HQ9 Master Servicer, the MSMC 2006-HQ9 Special
Servicer, the MSMC 2006-HQ9 Trustee and LaSalle Bank National Association, as
paying agent, certificate registrar and custodian, pursuant to which the MSMC
2006-HQ9 Trust issued its Commercial Mortgage Pass-Through Certificates, Series
2006-HQ9.
"MSMC 2006-HQ9 SPECIAL SERVICER" means the "special servicer" under
the MSMC 2006-HQ9 Pooling and Servicing Agreement, which as of the Closing Date
is X.X. Xxxxxx Company, Inc.
"MSMC 2006-HQ9 TRUST" means the trust established pursuant to the MSMC
2006-HQ9 Pooling and Servicing Agreement.
"MSMC 2006-HQ9 TRUSTEE" means the "trustee" under the MSMC 2006-HQ9
Pooling and Servicing Agreement, which as of the Closing Date is HSBC Bank USA,
National Association.
"MSMC 2006-IQ11 DEPOSITOR" means the "depositor" under the MSMC
2006-IQ11 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxxx Xxxxxxx Capital I Inc.
"MSMC 2006-IQ11 MASTER SERVICER" means the "master servicer" under the
MSMC 2006-IQ11 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxx Fargo Bank, National Association.
"MSMC 2006-IQ11 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement, dated as of May 1, 2006, by and between the MSMC 2006-IQ11
Depositor, the MSMC 2006-IQ11 Master Servicer, the MSMC 2006-IQ11 Special
Servicer and the MSMC 2006-IQ11 Trustee, pursuant to which the MSMC 2006-IQ11
Trust issued its Commercial Mortgage Pass-Through Certificates, Series
2006-IQ11.
"MSMC 2006-IQ11 SPECIAL SERVICER" means the "special servicer" under
the 2006-IQ11 Pooling and Servicing Agreement, which as of the Closing Date is
LNR Partners, Inc.
l
"MSMC 2006-IQ11 TRUST" means the trust established pursuant to the
MSMC 2006-IQ11 Pooling and Servicing Agreement.
"MSMC 2006-IQ11 TRUSTEE" means the "trustee" under the MSMC 2006-IQ11
Pooling and Servicing Agreement, which as of the Closing Date is LaSalle Bank
National Association.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means, for the related
Distribution Date, the excess of all Prepayment Interest Shortfalls incurred in
respect of all (or, where specified, a portion) of the Mortgage Loans (including
Specially Serviced Mortgage Loans) during any Collection Period over the
Compensating Interest to be paid by the Master Servicer (or any Primary Servicer
or Sub Servicer, if applicable according to the related Primary Servicing
Agreement or Sub Servicing Agreement) on such Distribution Date.
"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.
"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 Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust
or the Excess Interest Grantor Trust to fail to qualify as a grantor trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury 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 the Rating Agencies.
"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 Master
Servicer, the Special Servicer or the Trustee, that, in its respective sole
discretion, exercised in good faith and, with respect to the Master Servicer and
the Special Servicer, taking into account the Servicing Standard, will not be
or, in the case of a current delinquency, would not be, ultimately recoverable,
from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan or 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
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delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee is delivering such Officer's Certificate) and (in
either case) to the 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 Master Servicer's determination as to the
nonrecoverability of any Advance shall be conclusive and binding on the
Certificateholders and, in 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; 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
Master Servicer and the Trustee notice of such determination. Any such
determination shall be conclusive and binding on the Certificateholders, the
Master Servicer and the Trustee. Pursuant to Section 4.1A of this Agreement, any
determination as to the nonrecoverability of any Advance made with respect to
any Non-Serviced Mortgage Loan by the 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 and the 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 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 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 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 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.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X-1, Class X-2, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q 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. The Non-Serviced Companion Mortgage Loans related to
the Trust are the Cherry Creek Companion Loan and the Michigan Plaza Companion
Loan.
"NON-SERVICED MORTGAGE LOAN" means a Mortgage Loan included in the
Trust but serviced under another agreement. The Non-Serviced Mortgage Loans in
the Trust are the Cherry Creek Pari Passu Loan and the Michigan Plaza Pari Passu
Loan.
"NON-SERVICED MORTGAGE LOAN FISCAL AGENT" means the applicable "fiscal
agent" under the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement.
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"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, the
applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the mortgage securing a
Non-Serviced Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means a
pooling and servicing agreement under which a Non-Serviced Mortgage Loan is
serviced. The Non-Serviced Mortgage Loan Pooling and Servicing Agreements
related to the Trust are the MSMC 2006-IQ11 Pooling and Servicing Agreement and
the MSMC 2006-HQ9 Pooling and Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"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 (u) 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, (v) in the
case of the Master Servicer 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, (w) in the case of the
Trustee, a certificate signed by a Responsible Officer, (x) 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, any Treasurer, any Assistant Treasurer or
any Secretary or Assistant Secretary or any other authorized signatory, (y) 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 and (z) in the case of any other Additional Servicer, 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 or an employee thereof designated as a Servicing Officer
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"OPERATING ADVISER" shall mean the Person (or its designee) 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 to the extent 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). The initial Operating Adviser
will be LNR Securities Holdings, LLC.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as
applicable, reasonably acceptable in form and substance to the Master Servicer,
the Special Servicer, the Trustee or the Paying Agent, as applicable, and who is
not in-house counsel to the party required to deliver such opinion but who, in
the good faith judgment of 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 Class A-4FL Grantor Trust, the Class
A-MFL Grantor Trust or the Excess Interest Grantor Trust.
"OPTION" has the meaning set forth in Section 9.36.
"OPTION HOLDER" has the meaning set forth in Section 9.36.
"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 a 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 applicable "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.
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"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.
"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 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 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, the Excess Servicing Fee and the Primary 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 "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.
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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; 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-1, Class X-2, Class G and Class H
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-1, Class X-2, Class G and Class H Certificates,
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 Certificates shall equal the fixed rate corresponding to such Class
set forth in the Preliminary Statement hereto, (iv) the Class A-1A Certificates
shall equal the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto, (v) the Class A-2 Certificates shall equal the
fixed rate corresponding to such Class set forth in the Preliminary Statement
hereto, (vi) the Class A-3 Certificates shall equal the fixed rate corresponding
to such Class set forth in the Preliminary Statement hereto, (vii) the Class A-4
Certificates shall equal the fixed rate corresponding to such Class set forth in
the Preliminary Statement hereto, (viii) the Class A-4FL Certificates shall
equal the per annum rate equal to LIBOR plus 0.130%, provided, however, that
under the circumstances set forth in Section 6.12 regarding defaults or
terminations under the Class A-4FL Swap Contract, the Pass-Through Rate of the
Class A-4FL Certificates shall equal the Pass-Through Rate of the Class A-4FL
Regular Interest subject to reduction in accordance with the Class A-4FL Swap
Contract, (ix) the Class A-MFL Certificates shall equal the per annum rate equal
to LIBOR plus 0.160%,
lvi
provided, however, that under the circumstances set forth in Section 6.12
regarding defaults or terminations under the Class A-MFL Swap Contract, the
Pass-Through Rate of the Class A-MFL Certificates shall equal the Pass-Through
Rate of the Class A-MFL Regular Interest subject to reduction in accordance with
the Class A-MFL Swap Contract, (x) the Class A-J Certificates shall equal the
lesser of (A) 5.389% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xi) the Class B Certificates shall equal the
lesser of (A) 5.448% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xii) the Class C Certificates shall equal the
lesser of (A) 5.478% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xiii) the Class D Certificates shall equal the
lesser of (A) 5.547% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xiv) the Class E Certificates shall equal the
lesser of (A) 5.606% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xv) the Class F Certificates shall equal the
lesser of (A) 5.803% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (xvi) the Class G Certificates shall equal the
Weighted Average REMIC I Net Mortgage Rate corresponding to such Class for such
Distribution Date less 0.066%, (xvii) the Class H Certificates shall equal the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xviii)
the Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates shall equal the lesser of (A) 5.055% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (xix) 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), (xx) 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 Amount of such Components outstanding immediately prior to
such Distribution Date), (xxi) the Class A-4FL Regular Interest shall equal
5.328% per annum, and (xxii) the Class A-MFL Regular Interest shall equal the
lesser of (A) 5.360% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for 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.
"PCAOB" means the Public Company Accounting Oversight Board.
"PENALTY CHARGES" means the default interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a
lvii
percentage (carried to four decimal places and rounded, if necessary), the
numerator of which is the Certificate Balance or Notional Amount, as applicable,
represented by such Certificate determined as of the Closing Date (as stated on
the face of such Certificate) and the denominator of which is the Aggregate
Certificate Balance or Notional Amount, as applicable, of all of the
Certificates of such Class determined as of the Closing Date. With respect to
each Residual Certificate, the percentage interest in distributions (if any) to
be made with respect to the relevant Class, as stated on the face of such
Certificate.
"PERFORMING PARTY" has the meaning set forth in Section 13.12.
"PERMITTED MEZZANINE LOAN HOLDER" means, with respect to any mezzanine
loan, the Seller or any other holder of a mezzanine loan with respect to which
each Rating Agency has confirmed in writing to the Special Servicer and the
Trustee that the holding of such mezzanine loan by such Person would not cause a
qualification, downgrade or withdrawal of any of such Rating Agency's
then-current ratings on the Certificates.
"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
successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R. Section 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
of a Mortgage Loan (including payment of a Balloon Payment) 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 Primary
Servicing Fee, the Excess Servicing Fees, the Special Servicing Fee, the Trustee
Fee and the servicing fee and
lviii
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) 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 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 Primary 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.
"PRIMARY SERVICER" means a primary servicer under any applicable
Primary Servicing Agreement. There are no Primary Servicers related to the Trust
as of the Closing Date.
"PRIMARY SERVICING AGREEMENT" means the agreement between the
applicable Primary Servicer and the Master Servicer, under which such applicable
Primary Servicer services the Mortgage Loans set forth on the schedule attached
thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to any
applicable Primary Servicer (or the Master Servicer, as applicable) based on the
per annum rate specified on the Mortgage Loan Schedule, as more specifically
described, in the case of the applicable Primary Servicer, in the applicable
Primary Servicing Agreement (determined in the same manner (other than the rate
of accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan
for such month).
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"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 November 2006 that is not November 1, 2006, that principal
and interest payments for such month were paid on November 1, 2006), 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 A-1A, Class A-2, Class A-3, Class A-4, Class A-4FL, Class A-MFL, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means on any Distribution Date, the
amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled Payments, in
each case, to the extent received or advanced, as the case may be, in respect of
the Mortgage Loans and any REO Mortgage Loans (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;
plus
(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 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
lx
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), and which are applied pursuant to Section 6.6(c)(i); over
(II) the sum of (with respect to each such Mortgage Loan, allocated
first to the Loan Group Principal Distribution Amount applicable to such
Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and
Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the Special Servicer
and the Trustee from amounts in the 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 Master Servicer, the Special Servicer and the
Trustee during the 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 November 1, 2006, pursuant to which the Class X-1, Class X-2, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P and Class Q Certificates will be offered for sale.
lxi
"PROHIBITED PARTY" means (i) a Person that is a proposed Servicing
Function Participant that the Master Servicer, any Primary Servicer, the Paying
Agent, the Special Servicer or the Trustee, as applicable, seeks to retain as a
Servicing Function Participant and that the Master Servicer, any Primary
Servicer, the Paying Agent, the Special Servicer or the Trustee, as applicable,
has actual knowledge that such proposed Servicing Function Participant failed on
any prior date to comply with its Exchange Act or Regulation AB obligations with
respect to the Subject Securitization Transaction or any other commercial
mortgage securitization or (ii) any Person identified in writing (delivered
prior to the date of retention) by the Depositor to the Master Servicer, any
Primary Servicer, the Paying Agent, the Special Servicer or the Trustee, as
applicable, as a Person that the Depositor has knowledge has failed on any prior
date to comply with its Exchange Act or Regulation AB obligations with respect
to the Subject Securitization Transaction or any other commercial mortgage
securitization.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PROSPECTUS SUPPLEMENT" has the meaning set forth in the Preliminary
Statement hereto.
"PURCHASE PRICE" means, with respect to (i) the repurchase, pursuant
to Article II of this Agreement, by the Seller of a Mortgage Loan sold by the
Seller, (ii) the determination of fair value of an REO Mortgage Loan with
respect to a liquidation by the Special Servicer pursuant to Section 9.15 or
(iii) the determination of fair value of a Mortgage Loan in connection with a
purchase by the Option Holder pursuant to Section 9.36 under the circumstances
described therein, a price equal to the sum (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 Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, 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 Mortgage Loan Purchase Agreement, all expenses reasonably
incurred or to be incurred by the applicable Primary Servicer, the 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) plus, in connection with a purchase by a Seller, any Liquidation Fee
payable by such Seller in accordance with the proviso contained in the
definition of "Liquidation Fee".
lxii
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b), (iii) the purchase by the Option Holder of a Mortgage Loan
pursuant to Section 9.36, (iv) the purchase of an A Note by a holder of the
related B Note in accordance with the terms of the related Intercreditor
Agreement or (v) the purchase of a Mortgage Loan by a holder of a mezzanine loan
under the related mezzanine intercreditor agreement.
"QUALIFIED BIDDER" means as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
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 or if not so rated, then Fitch has issued a Rating Agency
Confirmation and "A2" by Moody's if rated by Moody's or if not rated by Moody's,
then Moody's 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 rated A:IX by A.M. Best or as to
which Fitch has issued a Rating Agency Confirmation, and "A2" by Moody's if
rated by Moody's or if not rated by Moody's, then Moody's 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 Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not
lxiii
more than two years less than, that of the Deleted Mortgage Loan; (iv) has (A)
an original Loan-to-Value Ratio not greater than the lesser of (x) the current
Loan-to-Value Ratio of the Deleted Mortgage Loan set forth under the heading
"Cut-Off Date LTV" in Appendix II to the Final Prospectus Supplement and (y) 75%
and (B) has a current Debt Service Coverage Ratio for the four calendar quarters
immediately preceding the repurchase or replacement of not less than the greater
of (x) the current Debt Service Coverage Ratio of the Deleted Mortgage Loan set
forth under the heading "NCF DSCR" in Appendix II to the Final Prospectus
Supplement and (y) 1.25x; (v) will comply with all of the representations and
warranties relating to Mortgage Loans set forth herein, as of the date of
substitution; (vi) has a Phase I Environmental Report relating to the related
Mortgaged Property in 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 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 (other than the Class
A-4FL Certificates and the Class A-MFL Certificates), the Class A-4FL Regular
Interest or the Class A-MFL Regular Interest that is not based on, or subject to
a cap equal to, 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 November 2041.
"RATING AGENCIES" means Fitch and Xxxxx'x.
"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
lxiv
action, failure to act, or other event specified herein will not in and of
itself result in the withdrawal, downgrade, or qualification, as applicable, of
the then-current rating assigned by such Rating Agency to any Class of
Certificates then rated by such Rating Agency, 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.
"RATING AGENCY TRIGGER EVENT" means if the Swap Counterparty
Guarantor's long-term rating is not at least "A-" by Fitch or "A3" by Moody's.
"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 Liquidation
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 Bankruptcy Loss attributable to the
reduction in the Principal Balance of the related Mortgage Loan, (iv) in the
case of an Expense Loss, the amount of such Expense Loss (other than Expense
Losses resulting from the payment of Special Servicing Fees) to the extent that
such Expense Loss does 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) the amounts in respect thereof that are
withdrawn from the Certificate Account pursuant to Section 6.6(b)(i).
Notwithstanding clause (iv) of the preceding sentence, to the extent that
Expense Losses (exclusive of Expense Losses resulting from payment of the
Special Servicing Fee) exceed amounts with respect to a Mortgage Loan that were
identified as allocable to principal, such excess shall be treated as a Realized
Interest Loss.
"RECORD DATE" means, for each Distribution Date, (i) with respect to
each Class of Certificates, other than the Class A-4FL Certificates and the
Class A-MFL Certificates, the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs and (ii) with respect
to the Class A-4FL Certificates and the Class A-MFL Certificates, subject to
Section 6.12, the Business Day immediately preceding the related Distribution
Date.
lxv
"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.
"REGISTERED CERTIFICATES" has the meaning set forth in the Preliminary
Statement hereto.
"REGULATION AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as have
been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,631 (Jan.
7, 2005)) or by the staff of the Commission, or as may be provided by the
Commission or its staff from time to time.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan, 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
lxvi
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.
"RELEVANT SERVICING CRITERIA" means the Servicing Criteria applicable
to each Reporting Servicer (as set forth, with respect to the Master Servicer,
the Special Servicer, any Primary Servicer, the Paying Agent and the Trustee, on
Schedule XIV attached hereto). For clarification purposes, multiple Reporting
Servicers can have responsibility for the same Relevant Servicing Criteria and
some of the Servicing Criteria will not be applicable to certain Reporting
Servicers. With respect to a Servicing Function Participant engaged by the
Trustee, the Master Servicer, the Special Servicer, any Primary Servicer, the
Paying Agent or any Sub-Servicer, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria applicable to the Trustee,
the Master Servicer, the Special Servicer, any Primary Servicer, the Paying
Agent or such Sub-Servicer.
"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 the Collection
Account, the Certificate Account, the Reserve Account, the Distribution Account
(other than the portions thereof constituting the Class A-4FL Floating Rate
Account, the Class A-MFL Floating Rate Account, and the Excess Interest
Sub-account and the Interest Reserve Account), the Insurance Policies (other
than the interests of the holder of any Non-Serviced Companion Mortgage Loan or
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
Non-Serviced Companion Mortgage Loan or any Serviced Companion Mortgage Loan or
B Note therein), for which a REMIC election will be made pursuant to Section
12.1(a) hereof. The Class A-4FL Regular Interest, the Class A-MFL Regular
Interest, the Class A-4FL Swap Contract, the Class A-MFL Swap Contract, the
Class A-4FL Floating Rate Account, the Class A-MFL Floating Rate Account, the
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 formed
hereunder. 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 REMIC I Residual Interest.
"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
lxvii
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 (commencing in 2007) and February (commencing in 2007) 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 2007) and the loan accrual period relating to
the Due Date related to the final Distribution Date 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 I RESIDUAL INTEREST" means the sole class of "residual
interests" in REMIC I and which shall be evidenced by the Class R-I
Certificates.
"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 will 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.
"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 $4,616,000, 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 $37,184,000, 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
lxviii
Certificate Balance equal to $72,000, 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 $3,355,000, 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 $3,817,000, 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 $3,741,000, 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 $3,615,000, 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 $3,558,000, 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 Certificate Balance equal to $72,500,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2-1" 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 $18,175,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2-2" 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 $65,075,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2-3" 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 $4,850,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
lxix
"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 an initial 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-4-1" 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 $43,941,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4-2" 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 $41,097,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4-3" 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 $38,495,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4-4" 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 $486,716,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4FL-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 $10,801,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4FL-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 $10,102,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4FL-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 $9,462,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4FL-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 $119,635,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-MFL" 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-MFL Certificates,
1xx
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-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 $2,693,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $14,081,000, 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 $2,548,000, 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 Balance equal to $19,817,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, 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 $13,025,000, 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 $5,613,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
1xxi
"REMIC II REGULAR INTEREST G-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 $4,128,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G-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 $14,509,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" 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 H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L-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 $779,000, and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L-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 $2,949,000, 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
1xxii
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 INTERESTS" means, collectively, the REMIC II Regular
Interest A-1-1, the REMIC II Regular Interest A-1-2, the REMIC II Regular
Interest A-1A-1, the REMIC II Regular Interest A-1A-2, the REMIC II Regular
Interest A-1A-3, the REMIC II Regular Interest A-1A-4, the REMIC II Regular
Interest A-1A-5, the REMIC II Regular Interest A-1A-6, the REMIC II Regular
Interest A-1A-7, the REMIC II Regular Interest A-2-1, the REMIC II Regular
Interest A-2-2, the REMIC II Regular Interest A-2-3, the REMIC II Regular
Interest A-3, the REMIC II Regular Interest A-4-1, the REMIC II Regular Interest
A-4-2, the REMIC II Regular Interest A-4-3, the REMIC II Regular Interest A-4-4,
the REMIC II Regular Interest A-4FL-1, the REMIC II Regular Interest A-4FL-2,
the REMIC II Regular Interest A-4FL-3, the REMIC II Regular Interest A-4FL-4,
the REMIC II Regular Interest A-MFL, the REMIC II Regular Interest A-J, the
REMIC II Regular Interest B, the REMIC II Regular Interest C-1, the REMIC II
Regular Interest C-2, the REMIC II Regular Interest D-1, the REMIC II Regular
Interest D-2, the REMIC II Regular Interest E, the REMIC II Regular Interest
F-1, the REMIC II Regular Interest F-2, the REMIC II Regular Interest G-1, the
REMIC II Regular Interest G-2, the REMIC II Regular Interest H, the REMIC II
Regular Interest J, the REMIC II Regular Interest K, the REMIC II Regular
Interest L-1, the REMIC II Regular Interest L-2, the REMIC II Regular Interest
M, the REMIC II Regular Interest N, the REMIC II Regular Interest O and the
REMIC II Regular Interest P.
"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 will be made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the penultimate
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-1A Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-J Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates, Class O Certificates, Class P Certificates, Class X-1
Certificates, Class X-2 Certificates, the Class A-4FL Regular Interest and the
Class A-MFL Regular Interest.
"REMIC POOL" means each of 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
1xxiii
Subchapter M of Chapter 1 of the Code, and related provisions, and final,
temporary and proposed regulations and rulings promulgated thereunder, as the
foregoing may be in effect from time to time and taking account, as appropriate,
of any proposed legislation or regulations which, as proposed, would have an
effective date prior to enactment or promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4, 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 X-1 and Class X-2 Certificates.
"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 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; provided that a
Mortgaged Property that secures a Non-Serviced Mortgage Loan
1xxiv
shall constitute an REO Property if and when it is acquired under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement for the benefit of
the Trustee as the holder of such Non-Serviced Mortgage Loan and of the holder
of the related Non-Serviced Companion Loan(s) through foreclosure, acceptance of
a deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in
connection with a default or otherwise treated as foreclosure property under the
REMIC Provisions. The Special Servicer shall not have any obligations with
respect to an REO Property that relates to a Mortgaged Property that secures a
Non-Serviced Mortgage Loan and all references to the Special Servicer's
obligations in this Agreement with respect to "REO Property" shall exclude any
such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPORTABLE EVENT" has the meaning set forth in Section 13.7.
"REPORTING SERVICER" means the Master Servicer, the Special Servicer
and any Servicing Function Participant (including any Primary Servicer, the
Paying Agent, the Trustee and each Sub-Servicer), as the case may be.
"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.
"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 or a subaccount of 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, 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 or Paying
Agent, any Vice President, Assistant Vice President, corporate trust officer or
any assistant corporate trust officer or persons performing similar roles on
behalf of the Trustee or Paying Agent.
1xxv
"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) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a CMSA Comparative Financial Status Report; (ii) without
duplication with Section 8.14, a CMSA 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 (viii) to the extent applicable a realized loss report
substantially in the form included in Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class P, Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A-J Certificates and the Class A-MFL
Certificates or the Class A-MFL Regular Interest, as applicable, and finally to
the Class X and Class A Senior Certificates (including the Class A-4FL
Certificates or the Class A-4FL Regular Interest, as applicable), on a pro rata
basis, as set forth herein.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"XXXXXXXX-XXXXX ACT" means 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).
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in Section
13.6.
"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, REO Mortgage Loan for
purposes of
1xxvi
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.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"SELLER" means MSMC.
"SELLER SUB-SERVICER" means a Sub-Servicer or Additional Servicer
required to be retained by a Master Servicer or Special Servicer, as applicable,
by a Seller, as listed on Schedule XIX hereto.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means a mortgage loan that is
serviced under this Agreement, is not a "Mortgage Loan" included in the Trust,
but is paid on a pari passu basis with a Mortgage Loan included in the Trust.
There are no Serviced Companion Mortgage Loans related to the Trust.
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the Certificate Account (but which are not included
in the Trust) created and maintained by the 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 a Mortgage Loan that is
included in the Trust and paid on a pari passu basis with a Serviced Companion
Mortgage Loan. There are no Serviced Pari Passu Mortgage Loans related to the
Trust.
"SERVICE(S)(ING)" means, in accordance with Regulation AB, the act of
servicing and administering the Mortgage Loans or any other assets of the Trust
by an entity that meets the definition of "servicer" set forth in Item 1101 of
Regulation AB and is subject to the disclosure requirements set forth in Item
1108 of Regulation AB. For clarification purposes, any uncapitalized occurrence
of this term shall have the meaning commonly understood by participants in the
commercial mortgage-backed securities market.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
1xxvii
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify the Master Servicer, the
Special Servicer, the Trustee or the Paying Agent, as the case may be, (subject
to standard exclusions) for all losses (less any deductible) sustained as a
result of any theft, embezzlement, fraud or other dishonest act on the part of
the Master Servicer's, the Special Servicer's, the Trustee'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 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.
"SERVICING ADVANCE" means any cost or expense of the Master Servicer,
the Special Servicer or the Trustee, as the case may be, designated as a
Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee, 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 CRITERIA" means the criteria set forth in paragraph (d) of
Item 1122 of Regulation AB, as such may be amended from time to time.
"SERVICING FUNCTION PARTICIPANT" means any Person, other than the
Master Servicer and the Special Servicer, that, within the meaning of Item 1122
of Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their Principal Balance). For clarification purposes, the Trustee, any
Primary Servicer and the Paying Agent are each Servicing Function Participants.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer, or an Additional Servicer, as the case may be, 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 Master Servicer, or an Additional Servicer, as the case may be,
and signed by an officer of the Master Servicer, or an Additional Servicer, as
the case may be, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer 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
1xxviii
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, taking into account the subordinated nature of such B Note (as determined
by the 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 and 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 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 the recovery
of principal and interest 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, taking
into account the subordinated nature of such B Note) on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the rate determined by
the Special Servicer but in any event not less than (i) 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 (ii) the weighted average of the mortgage
rates on the related A Note and B Note, 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 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 Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof; (III) the Master Servicer's
obligation to make Advances; (IV) the right of the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (V) any obligation of the 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) a payment default shall have occurred on a Mortgage Loan
(x) at its Maturity Date (except, if (a) the Mortgagor is making the related
Assumed Scheduled Payment, (b) the
1xxix
Mortgagor notifies the Master Servicer (who shall promptly forward such notice
to the Special Servicer and the Operating Adviser) of its intent to refinance
such Mortgage Loan and is diligently pursuing such refinancing, (c) the
Mortgagor delivers a firm commitment to refinance acceptable to the Operating
Adviser on or prior to the Maturity Date, and (d) such refinancing occurs within
60 days of such default which 60 day period may be extended to 120 days at the
Operating Adviser's discretion) or (y) if any other payment is more than 60 days
past due or has not been made on or before the second Due Date following the Due
Date such payment was due; (ii) any Mortgage Loan (other than a Non-Serviced
Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to which, to the
Master Servicer's or the Special 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;
(iii) any Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note as to which the Master Servicer or the Special
Servicer shall have received notice of the foreclosure or proposed foreclosure
of any other lien on the Mortgaged Property; (iv) any Mortgage Loan (other than
a Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the 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 Master Servicer or 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); (v) 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 inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan (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 Master Servicer or 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 Master
Servicer or 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);
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 the number of consecutive monetary defaults it is permitted to
cure under the related Intercreditor Agreement 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 a Servicing Transfer Event occurs with respect
to an A Note, it shall be deemed to have occurred also with
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respect to its related B Note; provided, however, that if a Servicing Transfer
Event would otherwise have occurred with respect to an A Note, but has not so
occurred solely because the holder of the related B Note has exercised its cure
rights under the related Intercreditor Agreement, then a Servicing Transfer
Event will not occur with respect to such A/B Mortgage Loan. 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. 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. 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.
"SIGNIFICANT MORTGAGE LOAN" means a Mortgage Loan which has a
Principal Balance (together with any other Mortgage Loan with which it is
cross-collateralized) equaling or exceeding 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 Mortgage Pool.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"SOLE CERTIFICATEHOLDER" means any Certificateholder (or
Certificateholders provided they act in unanimity) holding 100% of the then
outstanding Class X-1, Class X-2, Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class Q Certificates; provided, however, that the
Certificate Balances of the Class A-1, Class A-1A, Class A-2, Class A-3, Class
A-4, Class A-4FL, Class A-MFL, Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates have been reduced to zero.
"SONY PICTURES PLAZA A/B MORTGAGE LOAN" means the Sony Pictures Plaza
Mortgage Loan and the Sony Pictures Plaza B Note.
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"SONY PICTURES PLAZA B NOTE" means, with respect to the Sony Pictures
Plaza A/B Mortgage Loan, the related subordinated B Note not included in the
Trust, which is subordinated in right of payment to the Sony Pictures Plaza
Mortgage Loan to the extent set forth in the related Intercreditor Agreement.
"SONY PICTURES PLAZA MORTGAGE" means the Mortgage securing the Sony
Pictures Plaza A/B Mortgage Loan and any other note secured by the related
Mortgaged Property.
"SONY PICTURES PLAZA MORTGAGE LOAN" means the Mortgage Loan designated
as Mortgage Loan No. 16 on the Mortgage Loan Schedule and which is senior to the
Sony Pictures Plaza B Note and is secured by the related Mortgaged Property
pursuant to the Sony Pictures Plaza Mortgage. The Sony Pictures Plaza Mortgage
Loan is a "Mortgage Loan."
"SPECIAL SERVICER" means LNR Partners, Inc., 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 0.35% (or 0.25% in the case of
Mortgage Loan No. 1 on the Mortgage Loan Schedule) per annum, with a minimum of
$4,000 per month per Specially Serviced Mortgage Loan or REO Property.
"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 the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"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 a Servicing
Transfer Event has occurred and is
1xxxii
continuing. Promptly upon a Mortgage Loan, Serviced Companion Mortgage Loan or B
Note becoming a Specially Serviced Mortgage Loan, the Master Servicer shall
deliver to (which notice shall be effective upon receipt) the Special Servicer
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 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 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).
"SUBCONTRACTOR" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"SUBJECT SECURITIZATION TRANSACTION" shall mean the commercial
mortgage securitization transaction contemplated by this Agreement.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-MFL, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"SUB-SERVICER" means any Person that (i) is a Servicing Function
Participant, (ii) Services the assets of the Trust on behalf of (a) the Trust,
(b) the Paying Agent, (c) the Master Servicer, (d) the Special Servicer, (e) any
Additional Servicer (f) or any other Person that otherwise constitutes a
"Sub-Servicer", and (iii) is responsible for the performance (whether directly
or through sub-servicers or Subcontractors) of Servicing functions that are
required to be performed by the Trust, the Paying Agent, the Master Servicer,
the Special Servicer or any
1xxxiii
Additional Servicer under this Agreement or any sub-servicing agreement and are
identified in Item 1122(d) of Regulation AB.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d).
"SWAP CONTRACT" means the either the Class A-4FL Swap Contract or the
Class A-MFL Swap Contract, as applicable.
"SWAP COUNTERPARTY" means Xxxxxx Xxxxxxx Capital Services Inc., acting
in such capacity or its successor in interest.
"SWAP COUNTERPARTY GUARANTOR" means Xxxxxx Xxxxxxx, a Delaware
corporation.
"SWAP DEFAULT" means any failure on the part of the Swap Counterparty
to (i) make a required payment under a Swap Contract or (ii) either post
acceptable collateral, cause an acceptable entity to guarantee or provide an
indemnity in respect of the Swap Counterparty's obligations, find an acceptable
replacement Swap Counterparty after a Rating Agency Trigger Event or enter into
any other arrangement acceptable to the Rating Agencies, in each case, as
required by the Schedule to the related ISDA Master Agreement.
"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.
"10-K FILING DEADLINE" has the meaning set forth in Section 13.5.
"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 REMIC I (including the Mortgage Loans (other
than Excess Interest), such amounts related thereto as shall from time to time
be held in the Certificate Account, the Distribution Account (other than the
portions thereof constituting the Class A-4FL Floating Rate Account, the Class
A-4MFL Floating Rate Account and the Excess Interest Sub-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;
1xxxiv
REMIC III; the Class A-4FL Swap Contract, the Class A-MFL Swap Contract, the
Class A-4FL Regular Interest, the Class A-MFL Regular Interest and funds or
assets from time to time on deposit in the Class A-4FL Floating Rate Account,
the Class A-MFL Floating Rate Account, 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, 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 0.0015% 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 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.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Greenwich Capital Markets, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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.
1xxxv
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to that party 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 of Interests (including the Class A-4FL Regular Interest and the Class
A-MFL Regular Interest) or Certificates (other than the Class A-4FL
Certificates, the Class A-MFL Certificates and 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.
"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) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (a) 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 REO Status
Report, and (iv) a CMSA Loan Level Reserve/LOC Report.
"WATERSIDE SHOPS A/B MORTGAGE LOAN" means the Waterside Shops Mortgage
Loan and the Waterside Shops B Note.
"WATERSIDE SHOPS B NOTE" means, with respect to the Waterside Shops
A/B Mortgage Loan, the related subordinated B Note not included in the Trust,
which is subordinated in right of payment to the Waterside Shops Mortgage Loan
to the extent set forth in the related Intercreditor Agreement.
"WATERSIDE SHOPS MORTGAGE" means the Mortgage securing the Waterside
Shops A/B Mortgage Loan and any other note secured by the related Mortgaged
Property.
"WATERSIDE SHOPS MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is senior to the
Waterside Shops B Note and is secured by the related Mortgaged Property pursuant
to the Waterside Shops Mortgage. The Waterside Shops Mortgage Loan is a
"Mortgage Loan."
"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)(i) of Section 5.2(a).
1xxxvi
"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 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 Master Servicer. The Paying Agent shall
not be required to recompute, verify or recalculate the information supplied to
it by the 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 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 for in the definition of Liquidation
Realized Loss, any amounts (other than escrow and reserve deposits and
reimbursements of lender advances and expenses) 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 (other than the Class A-4FL Certificates and the Class A-MFL
Certificates), on the Class A-4FL Regular Interest and on the Class A-MFL
Regular Interest shall be calculated based upon a 360-day year consisting of
twelve 30-day months and, subject to Section 6.12, accrued interest on the Class
A-4FL Certificates and the Class A-MFL Certificates shall be
1xxxvii
calculated on the basis of the actual number of days elapsed in the related
Interest Accrual Period and a 360-day year. Pass-Through Rates shall be carried
out to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD 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 due 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.
1xxxviii
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest on any
Mortgage Loan 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 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 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 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 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 hereof. The 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 or is no longer serviced pursuant to the terms of this Agreement,
the holder of such Serviced Pari Passu Mortgage Loan or B Note, as applicable,
shall negotiate one or more new servicing agreements with the 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 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 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 Master
Servicer and the Special Servicer under Article VIII and Article IX and the
obligation of the 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
1xxxix
by the 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, (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, (iv) any final liquidation of such A/B Mortgage Loan or Loan Pair
and (v) the occurrence of a Final Recovery Determination with respect to the
related A Note or Serviced Pari Passu Mortgage Loan; provided, however, that
this statement shall not limit (A) the duty of the 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 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 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 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 Master Servicer of
a Request for Release. The 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 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 Master Servicer, the Special Servicer or the Trustee 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 the 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 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
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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, the 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, (v) with respect to the Class A-4FL Certificates,
the Class A-4FL Swap Contract, the Class A-4FL Regular Interest and funds or
assets from time to time on deposit in the Class A-4FL Floating Rate Account,
(vi) with respect to the Class A-MFL Certificates, the Class A-MFL Swap
Contract, the Class A-MFL Regular Interest and funds or assets from time to time
on deposit in the Class A-MFL Floating Rate Account, and (vii) all other assets
included or to be included in REMIC I, the Excess Interest Grantor Trust, the
Class A-4FL Grantor Trust or the Class A-MFL Grantor Trust. 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 Loans 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 Trustee, by the execution and delivery of this
Agreement, hereby agrees that such Mortgage Loans remain subject to the terms of
the related Non-Serviced Mortgage Loan Intercreditor Agreement and, with respect
to each Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan,
the related 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, the 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
xci
assigned, endorsed to the Trustee as specified in clause (i) of the definition
of "Mortgage File." The Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, the 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 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, 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, the 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 Seller shall obtain therefrom a certified copy of the
recorded original. The Seller shall forward copies thereof to the Trustee and
the Special Servicer and, if recorded in the name of MERS, shall deliver to the
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 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 Seller shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate. After the 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 Master Servicer to ensure that subsequent
relevant events relating to the Mortgage (as, for example, assumptions and
partial releases) are promptly and 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 the Seller pursuant to
Section 2 of the Mortgage Loan Purchase Agreement to deliver to the Trustee, on
or before the fifth Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached as Exhibit C to the applicable
Primary Servicing Agreement in favor of the Trustee and the Special Servicer to
empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
Seller, any mortgage loan documents required to be recorded as set forth 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
xcii
Sellers agree to reasonably cooperate with the Trustee 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 Seller, but in no event earlier than 18 months from the
Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. The Trustee shall submit such documents for
recording, at the Seller's expense, after the periods set forth above; provided,
however, the Trustee shall not submit such assignments for recording if the
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 Seller 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 Master Servicer or the applicable Primary Servicer on its
behalf, on or before the date that is 45 days following the Closing Date and
shall be held by the Master Servicer or the applicable Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer or the applicable Primary Servicer by
the Seller, the Servicer Mortgage File, will include, to the extent required to
be (and actually) delivered to the 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. Notwithstanding the
foregoing, the Seller shall not be required to deliver any draft documents, or
any attorney-client communications that are privileged communications or
constitute legal or other due diligence analyses, or internal communications of
the Seller or its affiliates, or credit underwriting or other analyses or data.
Delivery of any of the foregoing documents to the applicable Primary Servicer
(or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy
the Depositor's obligations under this Section 2.1(d). None of the Master
Servicer, the Special Servicer or the applicable Primary Servicer shall have any
liability for the absence of any of the foregoing items from the Servicing
Mortgage File if such item was not delivered by the 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 Seller with respect to each related Mortgage Loan as of
the Closing Date.
xciii
(f) In connection herewith, the Depositor has acquired the MSMC Loans
from MSMC. The Depositor will deliver or cause to be delivered the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as set forth 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. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, MSMC is required under the Mortgage Loan Purchase
Agreement to deliver 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
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 and future
Certificateholders, and the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest for the use and benefit of all present and future Holders of
the Class A-4FL and Class A-MFL Certificates, respectively. 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 Seller, the 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),
xciv
(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 the applicable Primary Servicing
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 maintained by MERS of recording transfers of
beneficial ownership for mortgages, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, (C) based
on its examination and only as to the Mortgage Note and Mortgage, the street
address of the Mortgaged Property set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan accurately reflects the information contained in
the documents in the Mortgage File, and (D) each Mortgage Note has been
endorsed. 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 set forth in the
definition of "Mortgage File," with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Adviser and the Seller, and if any recorded assignment
of Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees to use reasonable efforts to submit for recording any
unrecorded assignments of Mortgage that have been delivered to it (including
effecting such recordation process through or cooperating with the Seller), such
recordation to be at the expense of the Seller; provided, however, that the
Trustee shall not submit for recording any such assignments if the 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)
xcv
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, the
Seller (as to its Mortgage Loans only), the 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, the
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 Master
Servicer shall provide to the Trustee the names and addresses of each holder of
a Serviced Companion Mortgage Loan of which the Master Servicer has received
notice in accordance with this Agreement and/or the related Loan Pair
Intercreditor Agreement.
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 SELLER'S 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 the Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the Mortgage Loan Purchase Agreement, and, in either
case, the party discovering such defect or breach determines that either (i) the
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 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 (any such 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") the party determining that such Material
Document Defect or Material Breach exists shall give prompt written notice to
the other parties hereto and to each Rating Agency subject to the terms of the
applicable Mortgage Loan Purchase Agreement; provided that any breach of the
representation and warranty contained in paragraph 42 of such Exhibit 2 of the
Mortgage Loan Purchase Agreement shall constitute a Material Breach only if such
prepayment premium or yield maintenance charge is not deemed "customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax
xcvi
counsel to such effect or (ii) a determination by the Internal Revenue Service
that such provision is not customary. Promptly (but in any event within three
Business Days) upon determining (or becoming aware of another party's
determination) that any such Material Document Defect or Material Breach exists,
the Master Servicer shall, and the Special Servicer may, request that the
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 Seller is diligently attempting to effect such correction or cure, as
certified by such Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90 day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as set forth in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" and
(y) the Material Document Defect was identified in a certification delivered to
the Seller by the Trustee pursuant to Section 2.2 not less than 90 days prior to
the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to a Seller pursuant to Section 2.2 or otherwise nor possession of such
certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller or any party hereto of any Material Document Defect listed therein.
If any Material Document Defect or Material Breach that exists cannot
be corrected or cured in all material respects within the above cure periods,
the 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 Mortgage Loan
Purchase Agreement, or (ii) if within the three-month period 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 Regulations Section
1.860G-2(f)), at the 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 Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
Seller was notified of the defect or (ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
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 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
xcvii
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 Master Servicer and remitted by the Master Servicer to the 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 Seller shall
be entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
The 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 Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee (and the Custodian), 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 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 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 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 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 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 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 Crossed
Mortgage Loans (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than the greater
of (A) the Debt Service Coverage Ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF DSCR" in
Appendix II to the Final Prospectus Supplement and (B) 1.25x, and (ii) the
Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the lesser of (A) the current Loan-to-Value ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s)) set forth
under the heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus
Supplement and (y) 75%. The determination of the Master Servicer as to whether
the conditions set forth above have
xcviii
been satisfied shall be conclusive and binding in the absence of manifest error.
The Master Servicer will be entitled to cause to be delivered, or direct the
Seller to (in which case the Seller shall) cause to be delivered to the Master
Servicer: (A) 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 Seller if the scope and cost
of the Appraisal is approved by the Seller (such approval not to be unreasonably
withheld) and (B) an Opinion of Counsel that not requiring the repurchase of
each such other Mortgage Loan will not result in an Adverse REMIC Event.
With respect to any Defective Mortgage Loan, to the extent that the
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 that is cross-collateralized and/or
cross-defaulted (each, a "Cross-Collateralized Loan") with such Repurchased
Loan, the Seller and the Depositor have agreed in the Mortgage Loan Purchase
Agreement to modify, prior to such repurchase or substitution, the related
Mortgage Loan documents in a manner such that such affected Repurchased Loan, on
the one hand, and any related Cross-Collateralized Loans held by Trustee, on the
other, would no longer be cross-defaulted or cross-collateralized with one
another; provided that the Seller shall have furnished Trustee, at the expense
of such Seller, an opinion of Counsel that such modification shall not cause an
Adverse REMIC Event; provided, further, that if such opinion of Counsel cannot
be furnished, the Seller and the Depositor have agreed in the applicable
Mortgage Loan Purchase Agreement that such repurchase or substitution of only
the Repurchased Loan, notwithstanding anything to the contrary herein, shall not
be permitted and the Seller shall repurchase or substitute for the Repurchased
Loan and all related Cross-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized 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) or (d) the absence from the
Mortgage File of the item called for by paragraph (xii) 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 Master Servicer) will take the steps described
elsewhere in this
xcix
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 Seller for the cure of the document defect or
repurchase or replacement of the related Mortgage Loan.
If the 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 Mortgage Loan Purchase Agreement, then provided that (x) the period of
time provided for the 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 8.18, Section 9.12, Section 9.15 and
Section 9.36, as applicable, hereof, while pursuing the repurchase claim. The
Seller has acknowledged and agreed under the 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 Seller for any repurchase claim.
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 Seller shall be
without (i) recourse of any kind (either expressed or implied) by such Person
against the Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the 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 Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify the Seller of the discovery of the
Material Document Defect or Material Breach and the 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. 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 Seller is or
was obligated to repurchase the related Mortgage Loan or REO Mortgage Loan (a
"Final Judicial Determination") or the Seller otherwise accepts liability, then,
but in no event later than the termination of the Trust pursuant to Section 9.30
hereof, the 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 Seller) and the Purchase Price.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the 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 Seller
c
to deposit the amount of such shortage into the Certificate Account in the month
of substitution, without any reimbursement thereof. In addition, the Depositor
shall cause the Seller to deposit into the Certificate Account, together with
such shortage, if any, an amount equal to interest on the Deleted Mortgage Loans
at a rate equal to the sum of the applicable Mortgage Rate from the Due Date as
to which interest was last paid up to the Due Date next succeeding such
substitution together with the amount of unreimbursed Servicing Advances,
amounts required to be paid to the 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 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 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 Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each tender to the 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 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 Master Servicer of a Request for Release. The Master Servicer
shall, and is hereby authorized and empowered by the Trustee to, prepare,
execute and deliver in its own name, on behalf of the Certificateholders and the
Trustee or any of them, the endorsements and assignments contemplated by this
Section 2.3, and the Trustee shall execute and deliver any powers of attorney
necessary to permit the Master Servicer to do so. The Master Servicer shall, and
is also hereby authorized and empowered by the Trustee to, reconvey to the
Seller any deposits then held in an Escrow Account relating to the Mortgage Loan
being repurchased or substituted for. The 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 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 MSMC, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the MSMC
Loans.
(d) The Trustee or its designee (which, with the Master Servicer's
consent, may be the Master Servicer or which, with the Special Servicer's
consent, may be the Special Servicer) shall enforce the provisions of this
Section 2.3.
ci
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust) and the Paying Agent as of the
Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens
cii
arising under the federal tax laws or the Employee Retirement Income Security
Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the assets of REMIC I in exchange for
the REMIC I Interests, (ii) the REMIC I Regular Interests in exchange for the
REMIC II Interests, (iii) the REMIC II Regular Interests in exchange for the
REMIC III Certificates, the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest, (iv) the Class A-4FL Regular Interest and the Class A-4FL Swap
Contract in exchange for the Class A-4FL Certificates, (v) the Class A-MFL
Regular Interest and the Class A-MFL Swap Contract in exchange for the Class
A-MFL Certificates and (vi) the right to receive Excess Interest on the ARD
Loans in exchange for the Class Q 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 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 Seller of copies of
such documents made in favor of the trustee of the Non-Serviced Mortgage Loan
Pooling and Servicing Agreement.
(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
ciii
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, the Class A-MFL Certificates and
the Class A-J Certificates will be issuable in denominations of $25,000 initial
Certificate Balance and in any whole dollar denomination in excess thereof. The
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates will be issuable in
denominations of $100,000 initial Certificate Balance or initial Notional Amount
(as applicable) or in any whole dollar denomination in excess thereof. The Class
X-1 and Class X-2 Certificates will be issuable in denominations of $100,000
initial Notional Amount or in any whole dollar denomination in excess thereof.
The Class Q, 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 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-1,
Class X-2, Class A-MFL, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates 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 and Class P
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
civ
Registrar may resign or be discharged or removed by the Paying Agent or the
Certificateholders, and a new successor may be appointed, in accordance with the
procedures and requirements set forth in Sections 7.6 and 7.7 hereof with
respect to the resignation, discharge or removal of the Paying Agent and the
appointment of a successor Paying Agent. The Certificate Registrar may appoint,
by a written instrument delivered to the Holders and the Trustee, any trust
company to act as co-registrar under such conditions as the Certificate
Registrar may prescribe; provided that the Certificate Registrar shall not be
relieved of any of its duties or responsibilities hereunder by reason of such
appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive
cv
Certificate is to be made without registration under the Securities Act (other
than in connection with the initial issuance of the Certificates or a transfer
of such Non-Registered Certificate by the Depositor or one of its Affiliates),
then the Certificate Registrar shall refuse to register such transfer unless it
receives (and upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 hereto and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or (ii) an
Opinion of Counsel satisfactory to the Certificate Registrar to the effect that
such transfer shall be made without registration under the Securities Act,
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, 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 Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, the 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
cvi
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 Paying Agent, the Master
Servicer, 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, in the case of a Non-Investment
Grade Certificate, 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:
(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
cvii
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 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 Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest
cviii
holder", by purchasing an Ownership Interest in such Certificate,
agrees to give the Certificate Registrar written notice of its status
as such immediately upon holding or acquiring such Ownership Interest
in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Residual Certificate. None of the Trustee,
the Master 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 set
forth in clause (F) above shall be invalid, illegal or unenforceable,
then the Trustee shall have the right, without notice to the Holder or
any prior Holder of such Residual Certificate, but not the obligation,
to sell or cause to be sold such Residual Certificate to a purchaser
selected by the Trustee on such terms as the Trustee may choose. Such
noncomplying Holder shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Certificate
Registrar. Such purchaser may be the Certificate Registrar itself or
any Affiliate of the Certificate Registrar. The proceeds of such sale,
net of the commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Certificate Registrar to such
noncomplying Holder. The terms and conditions of any sale under this
clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be
liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
The 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 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
cix
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 the 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, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any REMIC Pool to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the Transfer
of any Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to
be subject to a tax caused by the Transfer of a Residual Certificate
to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent or the Certificate Registrar shall have any liability to the
Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
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(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master 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 in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Trustee, the Operating Adviser, the Paying Agent and any agent of
the Master Servicer, the Special Servicer, 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 the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, 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
cxi
Certificates, the 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, the Master Servicer, the Special
Servicer, the Depositor, the Paying Agent, the Trustee, the Swap Counterparty or
the Operating Adviser, as applicable, access during normal business hours to a
current list of the Certificateholders. The expense of providing any such
information requested by such Person shall be borne by the party requesting such
information and shall not be borne by the Certificate Registrar or the Trustee.
Every Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-4FL, Class A-MFL, Class A-J, 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
and Class P Certificates, upon original issuance, each shall be issued in the
form of one or more Certificates representing the Book-Entry Certificates, to be
delivered to the Certificate Registrar, as custodian for The Depository Trust
Company (the "Depository"), the initial Clearing Agency, by, or on behalf of,
the Depositor, provided, that any Non-Investment Grade Certificates sold to
Institutional Accredited Investors 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 interest
in the Certificates, except as provided in Section 3.9. Unless and until
Definitive Certificates have been issued to the Certificate Owners pursuant to
Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master 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
cxii
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 and Class H, Certificates sold to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class J, Class K, Class L, Class M, Class
N, Class O and Class P Certificates initially sold to Institutional Accredited
Investors 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 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
cxiii
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 set forth in
Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of Customers) and the records of Customers (with respect to
interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
Bank and Clearstream Bank).
cxiv
(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 set forth 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 set
forth herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the
cxv
occurrence of an Event of Default, Certificate Owners representing a majority in
aggregate outstanding Certificate Balance of such Global Certificate advise the
Clearing Agency through the Participants in writing (and the Clearing Agency so
advises the Depositor, the Certificate Registrar and the Master 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 or the Certificate Registrar shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Certificates, all references herein to obligations imposed upon or
to be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee and
the Paying Agent shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the Master Servicer and, if the Master Servicer does not make such Advances,
by the Trustee except to the extent that the Master Servicer or the Trustee, 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 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 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 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 any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the 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
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P&I Advance if such P&I Advance if made would be a Nonrecoverable Advance as
determined by the Special Servicer in accordance with the Servicing Standard,
and the Special Servicer has notified the Master Servicer of such determination
not later than 24 hours (and on a Business Day) prior to the date on which the
Master Servicer would be required to make such P&I Advance. Such determination
shall be conclusive and binding on the Trustee and the Certificateholders. The
Master Servicer shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Class A-4FL Certificates or the Class A-MFL
Certificates in the event that the Swap Counterparty fails to make a required
payment under the related Swap Contract. The Special Servicer shall not make P&I
Advances under this Agreement and shall not advance any amount due to be paid by
the Swap Counterparty for distribution to the Class A-4FL Certificates or the
Class A-MFL Certificates in the event that the Swap Counterparty fails to make a
required payment under the related Swap Contract. If the 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.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the related Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. Any
funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the 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.
With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the Master Servicer (and, if
it exercises its right to make a nonrecoverability determination, the Special
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 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 Master
Servicer, as
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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 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 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 Master Servicer shall provide
the Other Master Servicer written notice of such determination within two
Business Days after such determination was made. If the 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 Master Servicer shall
not make any additional P&I Advances with respect to such Mortgage Loan unless
the Master Servicer has consulted with the Other Master Servicer and they both
agree that circumstances with respect to such Mortgage Loan have changed such
that a proposed future P&I Advance would not be a Nonrecoverable Advance.
Notwithstanding the foregoing, the 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 Master Servicer or the Master
Servicer receives written notice of such determination by the Other Master
Servicer, the 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
Master Servicer shall be required to deliver to the related Other Master
Servicer the following information: (i) any loan related information (in the
form received), including without limitation CMSA Reports relating to the
related Serviced Pari Passu Mortgage Loan, applicable to a determination that an
Advance is or would be a Nonrecoverable Advance, within one Business Day of the
Master Servicer's receipt thereof, (ii) notice of any Servicing Advance it, or
the Trustee 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 Master Servicer and, if the 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 Master
Servicer, shall make Servicing Advances to the extent provided in this
Agreement, except to the extent that the Master Servicer or the Trustee, 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 Master Servicer not to make such Advance. Such
determination by the Master Servicer or the Special Servicer shall be conclusive
and binding on the Trustee and the Certificateholders and, in the case of any B
Note, the holder
cxviii
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. 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 Master Servicer
shall reimburse the Special Servicer for such Servicing Advance within 1
Business Day days of receipt of a statement therefor. The Special Servicer shall
promptly notify the Master Servicer that a Servicing Advance is required in
connection with a Specially Serviced Mortgage Loan or REO Property, and the
Master Servicer shall make such Servicing Advance within 5 Business Days of
receipt of such notice (or such shorter period as may be required to avoid a
foreclosure of liens for delinquent real estate taxes or a lapse in insurance
coverage). In addition, the Special Servicer shall provide the Master Servicer
or the Trustee with such information in its possession as the Master Servicer or
the Trustee may reasonably request to enable the Master Servicer or the Trustee,
as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Advance. Any request by the Special Servicer that
the Master Servicer make a Servicing Advance shall be deemed to be a
determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Advance and the Master Servicer shall be entitled to
conclusively relay on such determination; provided, that the determination shall
not be binding on the Master Servicer or the Trustee. The Master Servicer or
Special Servicer may update or change its recoverability determinations at any
time (but not reverse the other Master Servicer or Special Servicer's
determination that an Advance is a Nonrecoverable Advance). Promptly after
discovering that the Master Servicer has failed to make a Servicing Advance that
the Master Servicer is required to make hereunder, the Paying Agent shall
promptly notify the Trustee in writing of the failure by the Master Servicer to
make such Servicing Advance. The 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 the 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 Servicing Agreement with respect to any Non-Serviced Mortgage Loan,
and the Master Servicer shall have no obligation or authority to make Servicing
Advances with respect to such Mortgage Loan.
SECTION 4.3 ADVANCES BY THE TRUSTEE.
(a) To the extent that the 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 the 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 Master Servicer on
the Master Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. 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 Master Servicer has
failed to make a P&I Advance.
cxix
(b) To the extent that the 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 the Master Servicer or the Special Servicer determines is
a Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
actual 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.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the 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
Master Servicer, the Paying Agent, the Special 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) 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 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 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 determines at any time
that any portion of an Advance previously made or a portion of a proposed
Advance that the Trustee is required to make pursuant to this Agreement, if
made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the Trustee
delivered to the Depositor, the Master Servicer, the Special Servicer, the
Paying Agent and the Operating Adviser similar to the Officer's Certificate of
the 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, such determination
shall be evidenced by an Officer's Certificate of a Responsible Officer of the
Special Servicer, delivered to the Depositor, the Master Servicer, the Trustee,
the Paying Agent and the Operating Adviser similar to the Officer's Certificate
of the Master Servicer described above. The Trustee shall not be required to
make an Advance that the 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 Master Servicer, the Special Servicer, or the Trustee shall be
obligated to, nor shall it, make any Advance or make any payment that is
designated in this Agreement to be an Advance, if the Trustee determines in its
good faith business judgment and, with respect to the Master Servicer or the
Special Servicer, in accordance with the Servicing Standard that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance; provided, however, that the Special Servicer may, at its
option, make a determination in accordance with the Serivcing Standard that any
P&I Advance or Servicing Advance, if made,
cxx
would be a Nonrecoverable Advance and shall deliver to the Master Servicer and
the Trustee notice of such determination; provide, further, however, the Special
Servicer shall have no right to make an affirmative determination that any P&I
Advance is or would be recoverable and, in the absence of a determination by the
Special Servicer that such Advance is or would be a Nonrecoverable Advance, the
decision that a P&I Advance is recoverable shall remain with the Master Servicer
or Trustee, as applicable. Absent bad faith, such determination by the Special
Servicer shall be conclusive and binding on the Certificateholders, the Master
Servicer and the Trustee. The Master Servicer's and the Special Servicer's
determinations in accordance with the above provisions shall be conclusive and
binding on the Trustee, the Paying Agent and the Certificateholders. The Master
Servicer and the Special 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 or Non-Serviced Mortgage Loan Fiscal Agent, 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 the Master
Servicer's, the Special Servicer's or the Trustee's own funds shall accrue
interest on a daily basis, at a per annum rate equal to the Advance Rate, from
and including the date such Advance was made to but not including the date on
which such Advance has been reimbursed; provided, however, that neither the
Master 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 or any B Note 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
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 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 Mortgagors in an amount sufficient to pay Advance Interest incurred in
respect of each related Mortgage
cxxi
Loan. The 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 after the 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 with respect
to such Mortgage Loan exceed unreimbursed Advance Interest (incurred in respect
of the related Mortgage Loan) with respect to the Mortgage Loans arising on or
after the Cut-Off Date. The applicable Special Servicer, with respect to any
Specially Serviced Mortgage Loan, shall (i) pay from any Late Fees and default
interest collected from such Specially Serviced Mortgage Loan (a) any
outstanding and unpaid Advance Interest in respect of such Specially Serviced
Mortgage Loan to the Master Servicer, the Special Servicer or the Trustee, as
applicable and (b) to the Trust, any losses previously incurred by the Trust
with respect to such Specially Serviced Mortgage Loan (other than the related
Special Servicing Fee) and (ii) retain any remaining portion of such Late Fees
and default interest as additional Special Servicer Compensation. It is hereby
acknowledged that the Master Servicer may only waive Late Fees and default
interest to the extent set forth in Section 8.3(a).
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, 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 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 (ii) the Master Servicer and
the Special Servicer for any Advances outstanding to the Master Servicer or the
Special Servicer, as the case may be, 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
Servicer or the Special Servicer with respect to such Advances. To the extent
that any Advance Interest payable to the Master Servicer, the Special Servicer
or the Trustee with respect to a Specially Serviced Mortgage Loan or REO
Mortgage Loan cannot be recovered from the related Mortgagor, the amount of such
Advance Interest shall be payable to the Trustee, the Special Servicer or the
Master Servicer, as the case may be, from amounts on deposit in the 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
cxxii
5.3(b)(ii). The Master Servicer's, the Special Servicer's and the Trustee's
right of reimbursement under this Agreement for Advances and interest thereon
shall be prior to the rights of the Certificateholders (and, in the case of a
Serviced Companion Mortgage Loan, the holder thereof 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 Trustee, the 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 from
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" for non-Specially Serviced Mortgage Loans and
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 Specially
Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may
be, to the payment of Advance Interest on all Advances on such non-Specially
Serviced Mortgage Loans or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed. Advance Interest payable to the Master Servicer,
the Special Servicer 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 Master Servicer shall, subject
to Section 4.4, reimburse the Special Servicer for such expenditures on the next
succeeding Master Servicer Remittance Date, provided the Special Servicer has
delivered, on or before the related Determination Date, an invoice and a report
substantiating such expenses from the Special Servicer requesting such
reimbursement. With respect to each Collection Period, the Special Servicer
shall deliver such invoice and report to the Master Servicer by the following
Determination Date. All such amounts reimbursed by the Master Servicer shall be
a Servicing Advance, subject to Section 4.4. In the event that the Master
Servicer fails to reimburse the Special Servicer hereunder or the Master
Servicer determines that such Servicing Advance was or, if made, would be a
Nonrecoverable Advance and the Master Servicer does not make such payment, the
Special Servicer shall notify the 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 Servicer, 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).
cxxiii
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the 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 "Xxxxx Fargo Bank, National Association, 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 2006-HQ10" (the
"Certificate Account"). On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall maintain, or cause to be maintained
an additional separate account or accounts in the name of "Xxxxx Fargo Bank,
National Association, 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 2006-HQ10" (the "Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account or the Interest Reserve Account, as the case may
be, the Master Servicer shall give to the Paying Agent and the Trustee prior
written notice of the name and address of the depository institution(s) at which
such accounts are maintained and the account number of such accounts. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its applicable Primary Servicer's
or its Sub-Servicer's) right to direct payments and investments and its rights
of withdrawal under this Agreement.
(c) On the Closing Date, the Master Servicer shall deposit the Initial
Deposit delivered to it by the Depositor on that date into the Certificate
Account. The Master Servicer shall deposit, or cause to be deposited, into the
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 Master Servicer by the Special
Servicer from an REO Account pursuant to Section 9.14), other than amounts 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 Master Servicer (I) may retain
amounts otherwise payable to the Master Servicer as provided in Section 5.2(a)
rather than deposit them into the Certificate Account, (II) shall, rather than
deposit them in the Certificate Account, directly remit to the applicable
Primary Servicer the applicable Primary Servicing Fees payable as provided in
Section 5.2(a)(iv)(unless already retained by the applicable Primary Servicer),
and (III) shall, rather than deposit them in the 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)):
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(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: subject to subsection (d) hereof, all payments on
account of interest on the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note (minus any portion of any such payment
that is allocable to the period prior to the Cut-Off Date which shall
be remitted to the Depositor and excluding Interest Reserve Amounts to
be deposited in the Interest Reserve Account pursuant to Section
5.1(d) below);
(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 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 Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held in
the 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) Compensating Interest: all Compensating Interest received
with respect to the Mortgage Loans;
(J) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Account pursuant to this
Agreement, including Purchase Proceeds of any Mortgage Loans
repurchased by a Seller or substitution shortfall amounts (as set
forth 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
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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
(K) 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 Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account (each
an "A/B Loan Custodial Account") into which the 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 the 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.
With respect to any Loan Pair, the Master Servicer shall establish and
maintain one or more sub-accounts of the Certificate Account (each, a "Serviced
Companion Mortgage Loan Custodial Account") into which the 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 the 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 Master Servicer for deposit in
the Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the 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 deposited into the Interest Reserve
Account, 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 set forth in the proviso to the definition of
"REMIC I Net Mortgage Rate."
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(e) Funds in the Certificate Account (including any A/B Loan Custodial
Accounts and Serviced Companion Mortgage Loan Custodial Accounts) and Interest
Reserve Account may be invested and, if invested, shall be invested by, and at
the risk of, the Master Servicer in Eligible Investments selected by the 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 2006-HQ10 and the holder of any related Serviced Companion
Mortgage Loan or B Note as their interests may appear." None of the Depositor,
the Mortgagors, the Paying Agent or the Trustee shall be liable for any loss
incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the 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 Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
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) or Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized. If the Master Servicer deposits in or transfers to the Certificate
Account, any A/B Loan Custodial Account, any Serviced Companion Mortgage Loan
Custodial 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 Certificate
Account, such A/B Loan Custodial Account, such Serviced Companion Mortgage Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account, the related Serviced Companion Mortgage Loan
Custodial Account, the related A/B Loan Custodial Account or the Interest
Reserve 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 Master Servicer as additional servicing
compensation) the 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 Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the applicable Primary
Servicer will be entitled to hold any Escrow Accounts relating to the
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Mortgage Loans that it services in accordance with the requirements set forth in
Section 8.3(e). The Master Servicer shall not release any Escrow Amounts held
for "earn outs" or performance criteria listed on Schedule IX hereof, without
the prior consent of the Operating Adviser, which consent shall not be
unreasonably withheld or delayed. Within 20 days following the first anniversary
of the Closing Date, the 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 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.
(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 Master Servicer shall, unless the Scheduled Payment
is received before the end of such Collection Period, make a P&I Advance by
deposit to the Certificate Account on the Master Servicer Remittance Date in an
amount equal to the Scheduled Payment or the Assumed Scheduled Payment, as
applicable, and for purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," such Scheduled Payment or Assumed
Scheduled Payment, as applicable, shall be deemed to have been received in such
Collection Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) Subsection (I). The Master Servicer shall, from time to time, make
withdrawals from the 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 it shall determine from time to time of amounts
payable to the Master Servicer from the 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 the 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; provided that if the Master Servicer fails to make any remittance
required by this clause (x) to be made by the Master Servicer to the Paying
Agent for deposit in the Distribution Account on the Master Servicer Remittance
Date pursuant to clause (iii) or (xi) below, the Master Servicer shall pay
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(from its own funds without right of reimbursement therefor) to the Paying
Agent, for the account of the Paying Agent, interest on any amount not timely
remitted at the Advance Rate from and including the day the remittance was
required to be made to, but not including, the day on which such remittance is
actually made, and, (notwithstanding any contrary provision of Section 8.28) if
such remittance and payment of interest are made not later than 11:00 a.m.
(Eastern time) on the related Distribution Date, then, insofar as the failure to
make such remittance otherwise constitutes an Event of Default on the part of
the Master Servicer, then such Event of Default shall thereupon be deemed to
have been cured; and (y) to the Special Servicer from time to time of amounts
payable to the Special Servicer from the 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), (iv), (vi),
(vii) and (ix) below of the following amounts, from the amounts specified for
the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees
(in excess of amounts used to pay Advance Interest) relating to the Mortgage
Loans, Serviced Companion Mortgage Loans or B Notes which are not Specially
Serviced Mortgage Loans, 50% of any 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
application fees relating to Mortgage Loans, Serviced Companion Mortgage Loans
or B Notes which are not Specially Serviced Mortgage Loans, 50% of any
assumption fees relating to Mortgage Loans, Serviced Companion Mortgage Loans or
B Notes which are not Specially Serviced Mortgage Loans, 100% of any extension
fees payable under Section 8.10 or other fees payable to the Master Servicer
hereunder and (B) directly to the Special Servicer, 50% of any assumption fees,
assumption application fees, Modification Fees and related charges on Mortgage
Loans, Serviced Companion Mortgage Loans or B Notes which are not Specially
Serviced Mortgage Loans and, to the extent deposited in the Certificate Account,
all assumption fees (including assumption application fees) relating to
Specially Serviced Mortgage Loans and to the extent provided in Section 9.11(c),
Late Fees, Modification Fees, extension fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by or on behalf of the applicable Mortgagor and to the
extent provided for in Section 9.11(c), default interest in excess of Advance
Interest arising only from that particular Specially Serviced Mortgage Loan for
which Late Fees or default interest were collected;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, 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 Master Servicer, the
Special Servicer and the Trustee, pursuant to Section 4.6, (x) prior to a Final
Recovery Determination or determination in accordance with Section 4.4 that any
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
during the Collection Period during which
cxxix
such Advance is reimbursed, and then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the Certificate Account;
provided that, Late Fees and default interest will be applied on a "loan-by-loan
basis" for non-Specially Serviced Mortgage Loans (and any Serviced Companion
Mortgage Loans and B Notes that are not Specially Serviced Mortgage Loans) and
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 Specially
Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may
be, to the payment of Advance Interest on all Advances on such non-Specially
Serviced Mortgage Loans (and any Serviced Companion Mortgage Loan and B Notes
that are not Specially Serviced Mortgage Loans) or such Specially Serviced
Mortgage Loans, as the case may be, 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 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" for all non-Specially Serviced Mortgage Loans
(and any Serviced Companion Mortgage Loans and B Notes that are not Specially
Serviced Mortgage Loans) and on a "loan-by-loan basis", as set forth above, for
all Specially Serviced Mortgage Loans, as the case may be, to the payment of
Advance Interest on all Advances on such non-Specially Serviced Mortgage Loans
(and any Serviced Companion Mortgage Loans and B Notes that are not Specially
Serviced Mortgage Loans) or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed), then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the Certificate Account
and (B) in the case of any Non-Serviced Mortgage Loan and from any funds on
deposit in the 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 and the applicable
Non-Serviced Mortgage Loan Fiscal Agent 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, subject to
subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master
Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a Nonrecoverable
Advance, any P&I Advances from Late Collections made by the Mortgagor of the
amounts to which a P&I Advance relates, or REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or Purchase Proceeds and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account; provided
that, Late Fees and default interest will be applied on a "loan-by-loan basis"
for non-Specially Serviced Mortgage Loans and on a "loan-by-loan basis" (under
which Late Fees and default
cxxx
interest will be offset against the Advance Interest arising only from the
particular Specially Serviced Mortgage Loan) for Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed 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 the Certificate Account (regardless of whether such amount was recovered from
the applicable Mortgage Loan or REO Property) and any Advance Interest thereon,
first, from Late Fees and default interest collected during the Collection
Period during which such Advance is reimbursed (applying such Late Fees and
default interest on a "loan-by-loan basis" for all non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis", as set forth above, for all
Specially Serviced Mortgage Loans, as the case may be, to the payment of Advance
Interest on all Advances on such non-Specially Serviced Mortgage Loans or such
Specially Serviced Mortgage Loans, as the case may be, then being reimbursed),
then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the 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, to pay to the applicable Primary Servicer (or the Master Servicer)
the Primary Servicing Fees, and to pay to the parties entitled thereto the
Excess Servicing Fees (to the extent not previously retained by any of such
parties);
(v) Trustee Fee 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), and any other amounts that in fact
constitute Additional Trust Expenses whose payment 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 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 Certificate Account
(including any A/B Loan Custodial Accounts and Serviced Companion Mortgage Loan
Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the 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
cxxxi
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
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest) 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 and the obligation to make such payments to be offset by the
amount of any Class A-4FL Net Swap Payment or Class A-MFL Net Swap Payment, as
set forth in Section 8.31(b) or Section 8.32(b), as applicable, and Section
6.12;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note for which an A/B Loan
Custodial Account is required to be established by the Master Servicer:
(A) the 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 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), (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
A/B Mortgage Loan pursuant to this Agreement or the related
Intercreditor Agreement, and the 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 the 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 the Certificate
Account pursuant to Section 8.29;
(B) the 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 Certificate Account that does not constitute the A/B Loan
Custodial Account, of amounts not otherwise described in clause (A)
above to which the 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
cxxxii
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 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 set forth 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 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 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 the 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 the 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 the Certificate Account
pursuant to Section 8.29; provided, however that the Master Servicer
shall not be entitled to make transfers from the portion of the
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 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 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 Intercreditor Agreement (including in respect of
interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, on either (x) the later of (i) one (1)
Business Day after the related Determination Date or (ii)
alternatively, but only if the
cxxxiii
related Serviced Companion Mortgage Loan is primary serviced under the
applicable Primary Servicing Agreement, one (1) Business Day after
receipt from the applicable Primary Servicer or (y) such other date as
may be agreed to between the Master Servicer and the holder of the
related Serviced Companion Mortgage Loan (in their respective sole
discretion), 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 set forth 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 Master Servicer or the Trustee 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 the Master Servicer or the Trustee to subordinate (in respect of
realizing losses), to any Class of Certificates, such party's right to such
reimbursement during such period of deferral.
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 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
Certificate Account, each Serviced Companion Mortgage Loan Custodial Account and
any A/B Loan Custodial Account, as applicable. If funds collected in respect of
the A Notes are insufficient to pay the Master Servicing Fee, then the 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 Master Servicer shall not be permitted to
withdraw any funds from the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account unless there are no remaining funds in
the related A/B Loan Custodial Account available and 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"
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shall be construed always to mean the related Advance and any Advance
Interest thereon, together with any further Advance Interest that
accrues on the unreimbursed portion of such Advance from time to time
in accordance with the other provisions of this Agreement. That any
amount constitutes all or a portion of any Workout-Delayed
Reimbursement Amount shall not in any manner limit the right of any
Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of
and conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is
not otherwise entitled to reimbursement and payment of such
Workout-Delayed Reimbursement Amount pursuant to the operation of
Section 5.2(a)(I) above. Subsection (iv) below (subject to the terms
and conditions thereof) authorizes the Master Servicer to abstain from
reimbursing itself (or, if applicable, the Trustee to abstain from
obtaining reimbursement) for Nonrecoverable Advances under certain
circumstances 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 Person as would any other
Nonrecoverable Advance (and Advance Interest thereon) and, as a
Nonrecoverable Advance, such amount may become the subject of the
Master Servicer's (or, if applicable, the Trustee's) exercise of its
sole option authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall be entitled to reimbursement and payment for all
Workout-Delayed Reimbursement Amounts in each Collection Period;
provided, however, that the aggregate amount (for all such Persons
collectively) of such reimbursements and payments in such Collection
Period shall not exceed (and the reimbursement and payment shall be
made from) the aggregate amount in the Collection Account allocable to
principal received or advanced 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 Collection Account allocable to principal pursuant to the
preceding sentence.
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(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 Master Servicer,
Special Servicer or Trustee to reimbursement for any Nonrecoverable
Advance (including Workout Delayed Reimbursement Amounts that have
been determined by the Master Servicer, the Special Servicer or the
Trustee to be Nonrecoverable Advances) (or payment of Advance Interest
thereon from a source other than Late Fees and default interest on the
related Mortgage Loan) during any Collection Period, then,
notwithstanding any contrary provision of subsection (I) above, (a) to
the extent that one or more such reimbursements and payments of
Nonrecoverable Advances (and such Advance Interest thereon) are made,
such reimbursements and payments shall be made, first, from the
aggregate amount in the Collection Account allocable to principal
received or advanced 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 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), the Master Servicer or the Special Servicer (or the Trustee,
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 (subject to the requirement below that such party may not
defer any reimbursement for more than 6 Collection Periods without the
consent of the Operating Adviser), 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). The Master Servicer (or the
Trustee) or the Special Servicer, in considering whether an Advance is
a Nonrecoverable Advance, shall be entitled to give due regard to the
existence of any outstanding Nonrecoverable Advance or Workout Delayed
Reimbursement Amount with respect to other Mortgage Loans which, at
the time of such consideration, the reimbursement of which is being
deferred or delayed by the Master Servicer, the
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Special Servicer or the Trustee because there is insufficient
principal available for such reimbursement, in light of the fact that
proceeds on the related Mortgage Loan are a source of reimbursement
not only for the P&I Advance or Servicing Advance under consideration,
but also as a potential source of reimbursement of such Nonrecoverable
Advance or Workout Delayed Reimbursement Amount which is or may be
being deferred or delayed. If the Master Servicer or the Special
Servicer (or the Trustee) 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 the Master Servicer, the Special Servicer
or the Trustee to abstain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof during the Collection Period
for any Distribution Date, the Master Servicer or the Special Servicer
(or the Trustee) shall further be authorized to wait for principal
collections to be received before making its determination of whether
to abstain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof until the end of the Collection Period.
Notwithstanding the foregoing, the Master Servicer (or the Special
Servicer or the Trustee, as applicable) may defer the above
reimbursement for no more than 6 Collection Periods without the
consent of the Operating Adviser and, in any event, 12 Collection
Periods in the aggregate. If the Master Servicer (or the Special
Servicer or the Trustee, as applicable), determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable
Advances has been compromised, then the Master Servicer (or the
Special Servicer or the Trustee, as applicable) will be entitled to
immediate reimbursement of such Nonrecoverable Advance plus interest
thereon at the Advance Rate. The agreement of the Master Servicer (or
the Special Servicer or the Trustee, as applicable) to defer
reimbursement of such Nonrecoverable Advances shall not be construed
as an obligation on the part of such Master Servicer (or the Special
Servicer or the Trustee, as applicable), or a right of the
Certificateholders. No such deferment shall be deemed to create in the
Certificateholders a right to prior payment of distributions over such
Master Servicer's, Special Servicer's or the Trustee's right to
reimbursement for Advances. Deferred Advances shall continue to earn
interest at the Advance Rate. In all events the decision to defer
reimbursement or seek immediate reimbursement of Nonrecoverable
Advances shall be deemed to be in accordance with the Servicing
Standard.
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 Servicer, the Special Servicer or the Trustee
shall have any liability whatsoever for making an election, or refraining
from making an election, that is authorized under this subsection (II)(iv).
The foregoing shall not, however, be construed to limit any liability that
may otherwise be imposed on such Person for any
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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 the Master Servicer, the Special Servicer (or the
Trustee) 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 the Master Servicer,
the Special Servicer (or the Trustee) any obligation to make such an
election (or any entitlement in favor of any Certificateholder or any other
Person to such an election) with respect to any subsequent Collection
Period or to constitute a waiver or limitation on the right of the Master
Servicer, the Special Servicer (or the Trustee) to otherwise be reimbursed
for such Nonrecoverable Advance (and Advance Interest thereon). Any
election by the Master Servicer, the Special Servicer or the Trustee to
abstain from reimbursing itself for any Nonrecoverable Advance or portion
thereof with respect to any one or more Collection Periods shall not limit
the accrual of Advance Interest on the unreimbursed portion of such
Nonrecoverable Advance for the period prior to the actual reimbursement of
such Nonrecoverable Advance. None of the Master Servicer, the Special
Servicer, the Trustee 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, neither the Master Servicer, the Special
Servicer nor the Trustee shall have the right to abstain from reimbursing
itself for any Nonrecoverable Advance to the extent of the amount described
in clause (I)(A) of the definition of Principal Distribution Amount.
(v) Reimbursement Rights of the Master Servicer, Special Servicer
and Trustee Are Senior. Nothing in this Agreement shall be deemed to
create in any Certificateholder a right to prior payment of
distributions over the Master Servicer's, the Special Servicer's or
the Trustee's right to reimbursement for Advances plus Advance
Interest (whether those that constitute Workout-Delayed Reimbursement
Amounts, those that have been the subject of the Master Servicer's
election authorized in subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the 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 Master Servicer with respect to such
Scheduled Payment but after the end of such Collection Period shall be applied
by the Master Servicer to reimburse any related P&I Advance made pursuant to
cxxxviii
Section 5.1(h), and the 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 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
Master Servicer shall promptly notify the Paying Agent and the Paying Agent
shall, if it has already reported anticipated distributions to the Depository,
use commercially reasonable efforts to cause the Depository to make the revised
distribution on a timely basis on such Distribution Date. Neither the Master
Servicer nor the Paying Agent shall be liable or held responsible for any
resulting delay or failure (including any claim by the Depository) in the making
of such distribution to Certificateholders and any expenses incurred by the
Master Servicer or the Paying Agent in connection with its efforts to cause the
Depository to make such revised distributions on a timely basis shall be
reimbursed by the Trust. 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.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2007 and on the Master Servicer Remittance Date related to
the final Distribution Date, the Master Servicer shall withdraw all amounts then
in the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND 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), 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
2006-HQ10, Distribution Account" and (ii) an account (the "Reserve Account") to
be held in trust for the benefit of the holders of interests in the Trust until
disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank,
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
2006-HQ10, Reserve Account." The Distribution Account and the Reserve Account
shall be Eligible Accounts. Funds in the Reserve Account shall not be invested.
The Distribution Account and Reserve Account shall be held separate and apart
from and shall not be commingled with any other monies including, without
limitation, other monies
cxxxix
of the Paying Agent held under this Agreement, it being understood that the
Reserve Account may be a subaccount of the Distribution Account.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-HQ10 and the holder of any related B Note as their
interests may appear." None of the Depositor, the Mortgagors, the Special
Servicer, the Master Servicer, any Primary Servicer, 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 Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, 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 the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer and the Trustee other than Excess
Liquidation Proceeds, into the Distribution Account and all Excess Liquidation
Proceeds into the Reserve Account. The Paying Agent shall deposit amounts
constituting collections of Excess Interest on the Mortgage Loans into the
Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the 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 and, on the Master Servicer Remittance Date occurring
in March of any year, commencing in March 2007, and on the Master Servicer
Remittance Date related to the final Distribution Date, amounts held in the
Interest Reserve Account. 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 and
the Reserve Account in error and pay such amounts to the Persons entitled
thereto;
(ii) to pay any amounts payable to the Master Servicer, any
Primary Servicer, the Special Servicer 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
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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 (other than
the Class A-4FL Certificateholders and the Class A-MFL Certificateholders)
pursuant to Sections 6.5 and 6.11 and to make distributions to the Class A-4FL
Grantor Trust, in respect of the Class A-4FL Regular Interest, and to the Class
A-MFL Grantor Trust, in respect of the Class A-MFL Regular Interest, with a
credit for the amount of the Class A-4FL Net Swap Payment or the Class A-MFL Net
Swap Payment, as applicable, deemed distributed by the Paying Agent to the
Master Servicer's Floating Rate Account pursuant to Sections 5.3(c) and 6.12;
and
(iv) to clear and terminate the Distribution Account and the
Reserve Account pursuant to Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall, and, with
respect to Class A-4FL Net Swap Payments and the Class A-MFL Net Swap Payments,
the Master Servicer shall, establish and maintain separate Floating Rate
Accounts for the benefit of the Class A-4FL Certificateholders and the Class
A-MFL Certificateholders. The Floating Rate Accounts established by the Master
Servicer and referenced in the immediately succeeding sentence shall be
described herein as the "Master Servicer's Class A-4FL Floating Rate Account"
and the "Master Servicer's Class A-MFL Floating Rate Account", respectively. The
Class A-4FL Floating Rate Account shall (i) at all times be an Eligible Account,
(ii) be entitled: "Xxxxx Fargo Bank, National Association, as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
the Xxxxxx Xxxxxxx Capital I Trust 2006-HQ10, Floating Rate Account, Class
A-4FL" and "Xxxxx Fargo Bank, National Association, as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Trust 2006-HQ10, Floating Rate Account, Class A-4FL", as applicable
and (iii) relate solely to the Class A-4FL Certificates, and the Paying Agent
(and, with respect to the Master Servicer's Class A-4FL Floating Rate Account,
the Master Servicer) shall have the exclusive right to withdraw funds therefrom.
The Class A-MFL Floating Rate Account shall (i) at all times be an Eligible
Account, (ii) be entitled: "Xxxxx Fargo Bank, National Association, as Paying
Agent on behalf of LaSalle Bank National Association, as Trustee, in trust for
Holders of the Xxxxxx Xxxxxxx Capital I Trust 2006-HQ10, Floating Rate Account,
Class A-MFL" and "Xxxxx Fargo Bank, National Association, as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Trust 2006-HQ10, Floating Rate Account, Class A-MFL", as applicable
and (iii) relate solely to the Class A-MFL Certificates, and the Paying Agent
(and, with respect to the Master Servicer's Class A-MFL Floating Rate Account,
the Master Servicer) shall have the exclusive right to withdraw funds therefrom.
The Paying Agent shall deposit into the Class A-4FL Floating Rate Account (other
than the Master Servicer's Class A-4FL Floating Rate Account) and the Class
A-MFL Floating Rate Account (other than the Master Servicer's Class A-MFL
Floating Rate Account) on or prior to each Distribution Date an amount equal to
those amounts payable under the related Class A-4FL Regular Interest and Class
A-MFL Regular Interest, respectively (in each case net of any payments to the
Swap Counterparty made pursuant to Section 8.31(b) or Section 8.32(b) hereof)
pursuant to Article VI hereof and shall deposit into the Class A-4FL Floating
Rate Account (other than the Master Servicer's Class A-4FL Floating Rate
Account) and the Class A-MFL Floating Rate Account (other than the Master
Servicer's Class A-MFL Floating Rate Account),
cxli
respectively, all amounts received on the related Swap Contract in respect of
such Distribution Date. With respect to the Master Servicer's Class A-4FL
Floating Rate Account and the Master Servicer's Class A-MFL Floating Rate
Account established by the Master Servicer on behalf of the Trustee, the Paying
Agent, pursuant to Section 6.12, shall be deemed to have transferred, and to
have directed the Master Servicer to deposit, into the Master Servicer's Class
A-4FL Floating Rate Account and the Master Servicer's Class A-MFL Floating Rate
Account, as applicable, on or prior to each Master Servicer Remittance Date an
amount equal to that portion payable under the Class A-4FL Regular Interest or
the Class A-MFL Regular Interest pursuant to Article VI hereof that is equal to
the Class A-4FL Net Swap Payments or the Class A-MFL Net Swap Payments, as
applicable, due to the Swap Counterparty under the related Swap Contract.
Amounts in the Class A-4FL Floating Rate Account and the Class A-MFL Floating
Rate Account shall be held uninvested. The Paying Agent shall make withdrawals
from the Class A-4FL Floating Rate Account and the Class A-MFL Floating Rate
Account under its control in the following order of priority and only for the
following purposes:
(i) to withdraw amounts deposited in the Class A-4FL Floating
Rate Account and the Class A-MFL Floating Rate Account in error and pay such
amounts to the Persons entitled thereto;
(ii) to make distributions to the Holders of the Class A-4FL
Certificates and the Class A-MFL Certificates pursuant to Section 6.12;
(iii) to withdraw termination payments to purchase a replacement
Swap Contract, if applicable;
(iv) to pay the costs and expenses incurred by the Paying Agent
in connection with enforcing the rights of the Trust under the Class A-4FL Swap
Contract and the Class A-MFL Swap Contract only to the extent such costs and
expenses were incurred in accordance with Section 6.12; provided, that the
Paying Agent shall only be permitted to incur and reimburse itself out of the
Class A-4FL Floating Rate Account and the Class A-MFL Floating Rate Account,
respectively, with respect to any such costs and expenses which are in excess of
any termination payment received from the Swap Counterparty and not otherwise
applied to offset the expense of entering into a replacement Swap Contract if it
has received the written consent of 100% of the holders of the Class A-4FL
Certificates or the Class A-MFL Certificates, respectively, or has received a
Rating Agency Confirmation (with respect to the Class A-4FL Certificates or the
Class A-MFL Certificates, respectively) from each Rating Agency (the expense of
such confirmation to be paid by the holders of the Class A-4FL Certificates or
the Class A-MFL Certificates, as the case may be); and
(v) to clear and terminate the Class A-4FL Floating Rate Account
and the Class A-MFL Floating Rate Account pursuant to Section 9.1.
(d) Pursuant to Section 8.31(b) or Section 8.32(b), as applicable, on
the second Business Day prior to each Distribution Date the Paying Agent shall
notify the Master Servicer of the amount of any payments from the Master
Servicer's Class A-4FL Floating Rate Account or the Master Servicer's Class
A-MFL Floating Rate Account to be made to the Swap Counterparty on or before
3:00 p.m. New York time on each Master Servicer Remittance Date,
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and the Master Servicer shall cause such payments to be made in accordance with
this Agreement and the related Swap Contract.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date (in the aggregate and by
Loan Group, as appropriate), based on information provided in monthly reports
prepared by the Master Servicer and the Special Servicer and delivered to the
Paying Agent by the Master Servicer (no later than 1:00 p.m., New York time on
the Report Date), the Paying Agent shall make available to the general public
via its internet website initially located at "xxx.xxxxxxx.xxx" (the "Paying
Agent's Website"), (i) the Monthly Certificateholders Report (substantially in
the form of Exhibit M), (ii) a report containing information regarding the
Mortgage Loans as of the end of the related Collection Period, which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth in Appendix I to the Final Prospectus Supplement and shall be
presented in tabular format substantially similar to the format utilized in such
Appendix I which report may be included as part of the Monthly
Certificateholders Report, (iii) the 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, the Paying Agent will make available on its website any reports of
Forms 10-D, 10-K and 8-K promptly after they have been prepared and filed by the
Paying Agent with respect to the Trust through the XXXXX system.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer 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 January 2007). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder, 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 Master Servicer 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 Servicer, the Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the
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dissemination of information in accordance with this Agreement; provided that
this sentence shall not in any way limit the liability the Paying Agent may
otherwise have in the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder (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 deems 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 Servicer, the Special Servicer, any
Primary Servicer, the Trustee, the Operating Adviser, any Certificateholder, 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 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 Servicer, the Special Servicer, the Trustee, 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.
cxliv
(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 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.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool, the Class A-4FL Grantor Trust, the Class A-MFL Grantor Trust
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. The Master Servicer
shall on a timely basis provide the Paying Agent with such information
concerning the Mortgage Loans as is necessary for the preparation of the tax or
information returns or receipts of each REMIC Pool, the Class A-4FL Grantor
Trust, the Class A-MFL Grantor Trust 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 Master Servicer all information in its possession
with respect to the Specially Serviced Mortgage Loans in order for the 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 Servicer 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) with
respect to the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Trustee any unpaid fees, expenses and other amounts then required
to be paid pursuant to this Agreement, and then, to the Paying Agent, any unpaid
fees, expenses and other amounts then required to be paid pursuant to this
Agreement, and then at the written direction of the Master Servicer, withdraw
from the
cxlv
Distribution Account and pay to the Master Servicer, any Primary 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 the Master Servicer from the 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 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 Certificates of 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 (with a credit for an amount equal to any Class A-4FL Net Swap
Payment or Class A-MFL Net Swap Payment, as applicable, that was deemed
distributed by the Paying Agent to the Master Servicer's Class A-4FL Floating
Rate Account or the Master Servicer's Class A-MFL Floating Rate Account on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b) or Section 8.32(b), as applicable, 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 amount of the Available Distribution Amount
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
cxlvi
interest on such Realized Losses at the related REMIC I Net Mortgage Rate
previously allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests have been
reduced to zero, and Realized Losses (including interest thereon) previously
allocated thereto have been reimbursed to the Holders of the REMIC I Regular
Interests, any amounts of the Available Distribution Amount remaining with
respect to each Mortgage Loan (other than any 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 (with a credit for an amount equal to any Class A-4FL Net Swap
Payment or Class A-MFL Net Swap Payment, as applicable, that was deemed
distributed by the Paying Agent to the Master Servicer's Class A-4FL Floating
Rate Account or the Master Servicer's Class A-MFL Floating Rate Account on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b) or Section 8.32(b), as applicable) to itself on behalf of the Trustee,
as holder of the REMIC II Regular Interests, amounts distributable to any Class
of Principal Balance Certificates, or in the case of the Class A-4FL
Certificates or the Class A-MFL Certificates, distributable to the Class A-4FL
Regular Interest or the Class A-MFL Regular Interest, respectively, 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-1-1; and second, to REMIC II Regular Interest A-1-2; 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; and seventh, to REMIC II Regular Interest A-1A-7; in each case, until
their respective Certificate Balances are reduced to zero;
(iii) with respect to the Class A-2 Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-2-1; second, to REMIC II Regular Interest A-2-2; and third,
to REMIC II Regular Interest A-2-3; in each case, until their respective
Certificate Balances are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest
cxlvii
A-4-1; second, to REMIC II Regular Interest A-4-2; third, to REMIC II Regular
Interest A-4-3; and fourth, to REMIC II Regular Interest A-4-4, in each case,
until their respective Certificate Balances are reduced to zero;
(v) with respect to the Class A-4FL Certificates, shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-4FL-1; second, to REMIC II Regular Interest A-4FL-2; third,
to REMIC II Regular Interest A-4FL-3; and fourth, to REMIC II Regular Interest
A-4FL-4; in each case, until their respective Certificate Balances are reduced
to zero;
(vi) with respect to the Class C Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in each
case, until their respective Certificate Balances are reduced to zero;
(vii) 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;
(viii) 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;
(ix) with respect to the Class G Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest G-1; and second, to REMIC II Regular Interest G-2; in each
case, until their respective Certificate Balances are reduced to zero; and
(x) with respect to the Class L Certificates, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest L-1; and second, to REMIC II Regular Interest L-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 in accordance with Section 6.5(a), shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of such Component's
Corresponding REMIC II Regular Interest. All distributions of reimbursements of
Realized Losses made in respect of any Class of Principal Balance Certificates,
the Class A-4FL Regular Interest (in the case of the Class A-4FL Certificates),
or the Class A-MFL Regular Interest (in the case of the Class A-MFL
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
cxlviii
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 Liquidation Proceeds which shall be distributed in accordance with
Section 6.5(b), any Excess Interest, which shall be distributed in accordance
with Section 6.5(c), an amount equal to any Class A-4FL Net Swap Payment that
was deemed distributed in respect of the Class A-4FL Regular Interest on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.31(b)) and an amount equal to any Class A-MFL Net Swap Payment that was deemed
distributed in respect of the Class A-MFL Regular Interest on the immediately
preceding Master Servicer Remittance Date pursuant to Section 8.32(b)), which
shall be distributed in accordance with Section 6.5(b)) in the following amounts
and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-1A
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class A-4FL Regular Interest, 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-3 Certificates and Class A-4 Certificates and
the Class A-4FL Regular Interest, 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;
(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); and
(C) to the Holders of the Class X-1 and Class X-2 Certificates,
the Distributable Certificate Interest in respect of such Class for
such Distribution Date;
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-1 Certificates or the Class X-2 Certificates
on such Distribution Date as described above, the Available
cxlix
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;
(ii) concurrently:
(A) to the Holders of the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates and the Class A-4FL Regular Interest: first to
the Holders of the Class A-1 Certificates, the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount for such
Distribution Date, until the Aggregate Certificate Balance of the
Class A-1 Certificates has been reduced to zero; the portion of the
Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal
Distribution Amount distributed hereunder shall be reduced by any
portion thereof distributed to the Holders of the Class A-1A
Certificates (solely with respect to the Loan Group 2 Principal
Distribution Amount); second upon payment in full of the Aggregate
Certificate Balance of the Class A-1 Certificates, to the Holders of
the Class A-2 Certificates, the Loan Group 1 Principal Distribution
Amount for such Distribution Date and, after the Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan
Group 2 Principal Distribution Amount, until the Aggregate Certificate
Balance of the Class A-2 Certificates has been reduced to zero; the
portion of the Loan Group 1 Principal Distribution Amount and Loan
Group 2 Principal Distribution Amount distributed hereunder shall be
reduced by any portion thereof distributed to the Holders of the Class
A-1 Certificates 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-2
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 has 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-1 Certificates, Class A-2
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-3
Certificates, to the Holders of the Class A-4 Certificates and the
Class A-4FL Regular Interest, pro rata the Loan Group 1 Principal
Distribution Amount for such Distribution Date and, after the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount, until the
Aggregate Certificate Balance of the Class A-4 Certificates and the
Class A-4FL Regular Interest has been reduced to zero; the portion of
the Loan Group 1 Principal Distribution Amount and Loan Group 2
Principal Distribution Amount distributed hereunder shall be reduced
by any portion thereof distributed to the Holders of the Class A-1
Certificates, Class A-2
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Certificates, Class A-3 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 and the Class
A-4FL Regular Interest has been reduced to zero, the Loan Group 1
Principal Distribution Amount for such Distribution Date, until the
Aggregate Certificate Balance of the Class A-1A Certificates has been
reduced to zero; the portion of the Loan Group 1 Principal
Distribution Amount shall be reduced by any portion thereof
distributed to the Holders of the Class A-1, Class A-2, Class A-3, and
Class A-4 Certificates and the Class A-4FL Regular Interest;
(iii) to the Holders of the Class A Senior Certificates (other
than the Class A-4FL Certificates), the Class A-4FL Regular Interest, Class X-1
Certificates and the 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 shortfalls
in the amount of interest distributed other than by reason of a reduction of the
Notional Amount), plus interest at one-twelfth the applicable Pass-Through Rate
on such Realized Losses;
(iv) to the Holders of the Class A-MFL Regular Interest, the
Distributable Certificate Interest in respect of such Class of Certificates for
such Distribution Date;
(v) upon payment in full of the Certificate Balance of the Class
A-4 and Class A-1A Certificates and Class A-4FL Regular Interest, to the Holders
of the Class A-MFL Regular Interest, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder), until
the Certificate Balance of the Class A-MFL Regular Interest has been reduced to
zero;
(vi) to the Holders of the Class A-MFL Regular Interest, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate
on such Realized Losses;
(vii) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the
Class A-MFL Regular Interest, to the Holders of the Class A-J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(ix) to the Holders of the Class A-J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
cli
(x) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) 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;
(xii) to the Holders of the Class B Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xiii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) 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;
(xv) to the Holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xvi) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xvii) 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;
(xviii) to the Holders of the Class D Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xix) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) 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;
(xxi) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
clii
(xxii) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) 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;
(xxiv) to the Holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxv) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) 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;
(xxvii) to the Holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxviii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxix) 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;
(xxx) to the Holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxxi) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) 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;
(xxxiii) to the Holders of the Class J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
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(xxxiv) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) 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;
(xxxvi) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xxxvii) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxviii) 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;
(xxxix) to the Holders of the Class L Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xl) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xli) 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;
(xlii) to the Holders of the Class M Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xliii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xliv) 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;
(xlv) to the Holders of the Class N Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
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(xlvi) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlvii) 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;
(xlviii) to the Holders of the Class O Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses;
(xlix) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(l) 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;
(li) to the Holders of the Class P Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest at one-twelfth the applicable Pass-Through Rate on
such Realized Losses; and
(lii) to the Holders of the Class R-III Certificates at such time
as the Certificate Balances of all Classes of REMIC III Regular Certificates,
the Class A-4FL Regular Interest and the Class A-MFL Regular Interest have been
reduced to zero, and Realized Losses (including interest thereon) previously
allocated to each Holder have been reimbursed to the Holders of the REMIC III
Regular Certificates, the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest, any amounts remaining of Available Distribution Amount 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 Aggregate Certificate Balance
of all Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to the
Aggregate Certificate Balance of all 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-3 and Class A-4 Certificates and the
Class A-4FL Regular Interest, pro rata, based on their respective Certificate
Balances, in reduction of their respective Certificate Balances, until the
Certificate Balance of each such Class is reduced to zero; and, second, to the
Holders of the Class A-1, Class A-1A, Class A-2, Class A-3 and Class A-4
Certificates and the Class A-4FL Regular Interest, pro rata, based on the
respective amounts of unreimbursed Realized Losses previously allocated to each
such Class, plus one month's interest on such Realized Losses at the applicable
Pass-Through Rate. 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-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0X-0, X-0-0, X-0-0, X-0-0,
X-0-0, X-0-0, X-0-0, X-0-0, X-0XX-0, X-0XX-0, X-0XX-0 and A-4FL-4; provided that
sequential
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payments shall be made to the REMIC II Regular Interest as set forth
in Clauses (i) through (iii) 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, the Class A-4FL
Regular Interest and the Class A-MFL Regular Interest on such Distribution Date
such amounts in the following priority:
(i) First, to reimburse Holders of the Principal Balance
Certificates (other than the Class A-4FL Certificates and the Class A-MFL
Certificates) and the Class A-4FL Regular Interest and the Class A-MFL Regular
Interest, in order of alphabetical Class designation, (provided that the Class
A-MFL Regular Interest (and correspondingly the Class A-MFL Certificates) will
be senior in right to the Class A-J Certificates) for any, and to the extent of,
Unpaid Interest then owing to such Classes;
(ii) Second, to reimburse the Holders of the Principal Balance
Certificates (other than the Class A-4FL Certificates and the Class A-MFL
Certificates) and the Class A-4FL Regular Interest and Class A-MFL Regular
Interest in order of alphabetical Class designation, (provided that the Class
A-MFL Regular Interest (and correspondingly the Class A-MFL Certificates) will
be senior in right to the Class A-J Certificates) for any, and to the extent of,
Realized Losses previously allocated to them; and
(iii) Third, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates (other than the Class A-4FL
Certificates and the Class A-MFL Certificates) and the Class A-4FL Regular
Interest and the Class A-MFL Regular Interest 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)(i), (ii) and (iii) 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 Q 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
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extent that such Realized Interest Loss exceeds such amount, shall be treated as
an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances 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) If the Master Servicer, the Special Servicer or the Trustee
determines that an Advance previously made by it (whether such Advance (together
with Advance Interest thereon) was in respect of principal or interest on the
related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance and
the Master Servicer withdraws the amount of such Advance from the Certificate
Account pursuant to Section 5.2(a) hereof (which amount shall be treated as an
Available Advance Reimbursement Amount pursuant to Section 4.6) or if the Master
Servicer determines that any Unliquidated Advance has become a Nonrecoverable
Advance, the Master Servicer (after consultation with the Special Servicer)
shall compute the Realized Loss with respect to such Mortgage Loan (and the
Paying Agent shall allocate the Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate amount in
the 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, and shall be allocated to the
Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and
to the extent that any Realized Principal Loss exceeds the Certificate Balance
of the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal would
otherwise be paid on such Distribution Date, in proportion to such principal
payments; and
(ii) if the amount that the Master Servicer withdraws from the
Certificate Account as referenced in clause (b)(i) above exceeds such amount
allocable to principal received with respect to the Mortgage Loans for such
Collection Period, then such additional amounts shall constitute Unpaid
Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata
basis based upon the amount of accrued and unpaid interest thereon.
(c) If (x) a Final Recovery Determination is made with respect to any
Mortgage Loan with respect to which the Master Servicer previously had withdrawn
amounts from the Certificate Account following a determination that Advances
previously made were Nonrecoverable Advances and Realized Losses were computed
and allocated pursuant to clauses (a) and (b) above, and (y) amounts are
recovered thereafter:
(i) the portion of the amount of collections recovered on the
Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal
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shall be applied by the Paying Agent first, to make payments of principal on the
Corresponding REMIC I Regular Interest up to an amount equal to the Realized
Principal Losses previously allocated thereto as a result of the reimbursement
of Nonrecoverable Advances or Advance Interest (and the Principal Balance of the
Mortgage Loan and the related Certificate Balance of the Corresponding REMIC I
Regular Interest shall be correspondingly increased), and thereafter to make
payments of principal to the Corresponding REMIC I Regular Interests with
respect to which principal distributions were reduced pursuant to Section
6.6(b)(i) above, in proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan
that is identified and applied by the Master Servicer as recoveries of interest
shall be applied by the Paying Agent to make payments of Unpaid Interest on the
REMIC I Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the
Corresponding REMIC II Regular Interests in the amounts and in the manner as are
allocated to the REMIC III 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 Interests, 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 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-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-4FL Regular Interests, 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, and provided
further, 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. Losses of interest allocated to the
Class A-4FL Regular Interest reduce the interest distributable to the Class
A-4FL Certificates by an equivalent amount. Losses of principal that reduce the
Certificate Balance of the Class A-4FL Regular Interest reduce the Aggregate
Certificate Balance of the Class A-4FL Certificates by an equivalent amount.
Losses of interest allocated to the Class A-MFL Regular Interest reduce the
interest distributable to the Class A-MFL
clviii
Certificates by an equivalent amount. Losses of principal that reduce the
Certificate Balance of the Class A-MFL Regular Interest reduce the Aggregate
Certificate Balance of the Class A-MFL Certificates by an equivalent amount.
SECTION 6.7 PREPAYMENT INTEREST SHORTFALLS AND NET AGGREGATE
PREPAYMENT INTEREST SHORTFALLS. On each Distribution Date, the amount of 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, the amount of 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 in the REMIC II
Regular Interests in REMIC III, shall be allocated to each Class of REMIC III
Regular Interests pro rata, in proportion to the amount of Accrued Certificate
Interest payable to such Class on such Distribution Date and shall reduce the
Distributable Certificate Interest for such Class for such Distribution Date.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the 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 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
clix
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 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 Special Servicer shall calculate any
Appraisal Reduction. The Special Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan, B Note and Loan Pair based on updated
Appraisals or internal valuations and report such amount to the Trustee
annually. 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. The Trustee shall
not be responsible for the Paying Agent's failure to comply with any withholding
requirements.
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 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 J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates), the Class
clx
A-4FL Regular Interest and the Class A-MFL Regular Interest, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Paying Agent on behalf of the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of all such Classes of 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 all such 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 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 or the Class A-4FL Regular
Interest or the Class A-MFL Regular Interest will be distributed to the Holders
of the Class X Certificates. On any Distribution Date on or before the
Distribution Date in November 2010, 94% of the 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-1 Certificates and 6% of the
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-2
Certificates. After the Distribution Date in November 2010, 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-1
Certificates. For so long as the Class A-4FL Swap Contract and the Class A-MFL
Swap Contract, or any replacement Swap Contract, are in effect, the Prepayment
Premium allocated to the Class A-4FL Regular Interest and the Class A-MFL
Regular Interest shall be payable to the Swap Counterparty pursuant to the terms
of the related Swap Contract. If the Class A-4FL Swap Contract, the Class A-MFL
Swap Contract or any replacement Swap Contracts are no longer in effect, any
Prepayment Premium allocated to the Class A-4FL Regular Interest or the Class
A-MFL Regular Interest shall be distributed to the Class A-4FL Certificates or
the Class A-MFL Certificates, respectively.
SECTION 6.12 OTHER DISTRIBUTIONS. On each Master Servicer Remittance
Date, the Paying Agent shall be deemed to distribute to the Master Servicer, for
deposit in the Master Servicer's Floating Rate Account with respect to Class
A-4FL Net Swap Payments and Class A-MFL Net Swap Payment, that amount specified
by the Paying Agent pursuant to Section 8.31(b) and Section 8.32(b), as
applicable. The Master Servicer shall offset and retain such amount from the
payment it delivers to the Paying Agent on the Master Servicer Remittance Date
pursuant to Section 5.2(a)(xi) and shall deposit such amount, on behalf of the
Trustee, in the Master Servicer's Class A-4FL Floating Rate Account and the
Master Servicer's Class A-MFL Floating Rate Account, as applicable, and such
payment shall be deemed to have been made by the Paying Agent as a payment of a
portion of the interest and Prepayment Premiums, as applicable,
clxi
on the Class A-4FL Regular Interest and the Class A-MFL Regular Interest,
respectively. On each Distribution Date, the Paying Agent shall distribute the
Class A-4FL Available Funds for such Distribution Date to the Holders of record
of the Class A-4FL Certificates as of the related Record Date in the following
amounts: (i) the Class A-4FL Interest Distribution Amount, (ii) the Class A-4FL
Principal Distribution Amount and (iii) only if the Class A-4FL Swap Contract
has been terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-4FL Regular Interest. On
each Distribution Date, the Paying Agent shall distribute the Class A-MFL
Available Funds for such Distribution Date to the Holders of record of the Class
A-MFL Certificates as of the related Record Date in the following amounts: (i)
the Class A-MFL Interest Distribution Amount, (ii) the Class A-MFL Principal
Distribution Amount and (iii) only if the Class A-MFL Swap Contract has been
terminated and no replacement Swap Contract has been entered into, any
Prepayment Premiums that were allocated to the Class A-MFL Regular Interest. No
Holder of a Class A-4FL Certificate or a Class A-MFL Certificate shall be
entitled to receive any portion of any Prepayment Premium paid on the Class
A-4FL Regular Interest or the Class A-MFL Regular Interest, respectively, unless
the related Swap Contract has been terminated and no replacement Swap Contract
has been entered into. Such amount shall be payable to the Swap Counterparty
pursuant to the terms of the related Swap Contract. Following a Swap Default
under the related Swap Contract or other default or event of termination of the
related Swap Contract, and during the period when the Paying Agent is pursuing
remedies under such related Swap Contract, the Class A-4FL Interest Distribution
Amount for each Class A-4FL Certificate and the Class A-MFL Interest
Distribution Amount for each Class A-MFL Certificate shall equal the
Distributable Certificate Interest Amount for the Class A-4FL Regular Interest
and the Distributable Certificate Interest Amount for the Class A-4FL Regular
Interest, respectively, until such time as the conditions giving rise to such
Swap Default or other default or event of termination have been cured or such
related Swap Contract has been replaced. Any such Swap Default, other default or
event of termination, and the consequent change to a fixed Pass-Through Rate
shall not constitute a default under this Agreement. To the extent that The
Depository Trust Company is not provided with sufficient notice of a change to a
fixed Pass-Through Rate, a Swap Default can result in a delay in the
distribution of amounts payable to the Class A-4FL Certificates and the Class
A-MFL Certificates and such delay will not constitute a default by any party to
this Agreement nor result in the accrual of interest on such delayed payment and
no party hereto shall be obligated to advance such amounts. Notwithstanding the
foregoing, to the extent provided in the related Swap Contract, the Swap
Counterparty will remain liable for such Swap Default or other default or event
of termination pursuant to the related Swap Contract.
For as long as a Swap Default or other default or event of termination
has occurred and is continuing and a Class A-4FL Certificate or Class A-MFL
Certificate is receiving interest at the fixed Pass-Through Rate, such Class
A-4FL Certificate or Class A-MFL Certificate, shall accrue interest at the same
rate, on the same basis and in the same manner as the related Class A-4FL
Regular Interest or Class A-MFL Regular Interest, as the case may be.
If the related Swap Contract becomes subject to early termination due
to the occurrence of a Rating Agency Trigger Event, a Swap Default, an event of
default or a termination event thereunder, the Paying Agent on behalf of the
Trustee shall promptly provide written notice to the Depository, the Holders of
the Class A-4FL Certificates or the Holders of
clxii
the Class A-MFL Certificates, and the Paying Agent shall take such commercially
reasonable actions (following the expiration of any applicable grace period),
unless otherwise directed in writing by the holders of 100% of the Class A-4FL
Certificates or 100% of the Class A-MFL Certificates, as the case may be (and
only to the extent that, and only for so long as, doing so does not lead the
Paying Agent to incur expenses in excess of the amounts available to it from
such holders for reimbursement), to enforce the rights of the Trust under the
related Swap Contract as may be permitted by the terms of the related Swap
Contract and consistent with the terms hereof, and shall apply the proceeds
collected from the Swap Counterparty in connection with any such actions
(including, without limitation, the proceeds of the liquidation of any
collateral pledged by the Swap Counterparty) to enter into a replacement
interest rate swap contract on substantially identical terms or on such other
terms acceptable to the Rating Agencies. The Paying Agent shall be permitted
(subject to the final two paragraphs of this Section 6.12) to retain and rely
upon investment banking firms of national reputation in connection with
identifying and entering into any replacement interest rate swap contracts, and
the Paying Agent's reliance on the advice of such investment banking firms shall
provide 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. Each Rating Agency shall confirm in writing that the execution
and delivery of any proposed interest rate swap contract will not result in a
qualification, downgrade or withdrawal of the then-current ratings of the
Certificates. If the costs attributable to entering into a replacement interest
rate swap contract will exceed the sum of the net proceeds of the liquidation of
the related Swap Contract, a replacement interest rate swap contract shall not
be entered into. Prior to the application of any proceeds in accordance with the
terms of this paragraph, such proceeds shall be deposited in segregated trust
accounts, which shall be an Eligible Account, established by the Paying Agent
and identified as held in trust for the benefit of the Certificateholders of the
Class A-4FL Certificates and of the Certificateholders of the Class A-MFL
Certificates, respectively. Any proceeds of the liquidation of the related Swap
Contract which exceed the costs attributable to entering into a replacement
interest rate swap contract (or if no replacement interest rate swap contract is
entered into) shall be deposited into the Class A-4FL Floating Rate Account or
the Class A-MFL Floating Rate Account and shall be distributed to the holders of
the Class A-4FL Certificates or the holders of the Class A-MFL Certificates, as
applicable.
The Trustee and the Paying Agent shall be entitled to conclusively
rely on the report from the Swap Counterparty that specifies LIBOR for any
Interest Accrual Period.
As long as the related Swap Contract (or any replacement thereof) is
in effect, each beneficial owner of a Class A-4FL Certificate or a Class A-MFL
Certificate, or any interest therein, shall be deemed to have represented that
either (i) it is not an employee benefit plan subject to Title I of ERISA, a
plan subject to Section 4975 of the Code, or a plan subject to any Similar Laws
or any person investing on behalf of or with plan assets of such employee
benefit plan or plan or (ii) the acquisition and holding of such Certificate are
eligible for the exemptive relief available under at least one of the
Investor-Based Exemptions.
Notwithstanding anything herein to the contrary, any expenses incurred
by the Paying Agent under this Section 6.12 shall be paid solely by the Class
A-4FL Grantor Trust or the Class A-MFL Grantor Trust, as applicable, after the
application of funds held in the Class A-4FL Floating Rate Account or the Class
A-MFL Floating Rate Account, respectively, in
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accordance with Section 5.3(c), but only upon the Paying Agent's determination
that such expenses cannot be recovered from the Swap Counterparty or any
proceeds due under the related Swap Contract; provided, that the Paying Agent
shall only be permitted to incur any costs and expenses which are in excess of
any termination payment received from the Swap Counterparty and not otherwise
applied to offset the expense of entering into a replacement Swap Contract if it
has received the written consent of 100% of the holders of the Class A-4FL
Certificates or 100% of the holders of the Class A-MFL Certificates, as the case
may be, or has received a Rating Agency Confirmation (with respect to the Class
A-4FL Certificates or the Class A-MFL Certificates) from each Rating Agency (the
expense of such confirmation to be paid by the holders of the Class A-4FL
Certificates or the Class A-MFL Certificates, respectively). Factors that the
Paying Agent may consider when making a recoverability determination with
respect to the reimbursement of such expenses include, but are not limited to,
(i) the financial condition of the Swap Counterparty and (ii) the likelihood
that the Swap Counterparty will make such reimbursements in the event the Paying
Agent pursues appropriate legal action or other commercially reasonable
enforcement and collection measures.
The Paying Agent shall not be required to expend any amounts in
connection with enforcing the rights of the Trust under the related Swap
Contract or entering into a replacement interest rate swap contract to the
extent amounts are not available (or, in the Paying Agent's sole discretion,
reasonably anticipated to be available) in the Class A-4FL Grantor Trust or the
Class A-MFL Grantor Trust, as applicable, after the application of funds held in
the Class A-4FL Floating Rate Account or the Class A-MFL Floating Rate Account,
respectively, in accordance with Section 5.3(c).
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE AND THE PAYING AGENT.
(a) The Trustee and the Paying Agent each shall undertake to perform
only those duties as are specifically set forth in this Agreement and no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Paying Agent. Any permissive right of the Trustee, or the Paying Agent
provided for in this Agreement shall not be construed as a duty of the Trustee,
or the Paying Agent. The Trustee 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 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 or the Paying Agent, as applicable, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee or the Paying Agent, as the case
may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or
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content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the 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 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) None of the Trustee 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 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 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;
(ii) no provision of this Agreement shall require either the
Trustee or the Paying Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it;
(iii) neither the Trustee 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 the 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) neither the Trustee 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 or the Paying Agent, as in accordance with
this Agreement. In such event, all legal expense and costs of such action shall
be expenses and costs of the Trust, and the Trustee and the Paying Agent shall
be entitled to be reimbursed therefor from the Certificate Account pursuant to
Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall be charged
with knowledge of a Rating Agency Trigger Event or of any failure by the Master
Servicer or the Special Servicer or the Swap Counterparty or by each other to
comply with its obligations under this Agreement or the Swap Contract or any
act, failure, or breach of any Person upon the
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occurrence of which the Trustee or the Paying Agent may be required to act,
unless a Responsible Officer of the Trustee or the Paying Agent, as the case may
be, obtains actual knowledge of such failure.
(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 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 CUSTODIAN AND
THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and may
rely and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee and the Paying Agent each may consult with
counsel and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) neither the Trustee 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;
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(v) the Trustee and the Paying Agent each may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, which agents or attorneys shall have any or all
of the rights, powers, duties and obligations of the Trustee and the Paying
Agent conferred on them by such appointment; provided that each of the Trustee
and the Paying Agent, as the case may be, shall continue to be responsible for
its duties and obligations hereunder and shall not be liable for the actions or
omissions of the Master Servicer, the Special Servicer, the Depositor or the
actions or omissions of each other;
(vi) neither the Trustee nor the Paying Agent shall be required
to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee 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 Paying Agent shall be liable
for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee 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 Paying Agent
shall be responsible for any act or omission of the 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 to the
extent such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
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(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 to the extent 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 AND THE PAYING AGENT NOT LIABLE FOR
CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee and the Paying Agent
each makes no representations as to the validity or sufficiency of this
Agreement, the information contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or Prospectus
for the REMIC III 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 each of the Trustee and the Paying Agent represents that,
assuming due execution and delivery by the other parties hereto, this Agreement
has been duly authorized, executed and delivered by it and constitutes its valid
and binding obligation, enforceable against it in accordance with its terms
except that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. None
of the Trustee or the Paying Agent shall be accountable for the use or
application by the Depositor or the 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 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 to the extent
of information furnished by the Trustee under the caption entitled "TRANSACTION
PARTIES-- The Trustee" and with respect to the Paying Agent, to the extent of
information furnished by the Paying Agent under the caption "TRANSACTION
PARTIES-- 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 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 Paying Agent shall be
liable for any action or failure of any action by the Depositor or the Master
Servicer or the Special Servicer or by each other hereunder. Neither the Trustee
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
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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 Master Servicer); the compliance by the
Depositor, the Seller, the Mortgagor or the 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-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the 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
the Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE AND THE PAYING AGENT MAY OWN CERTIFICATES.
Each of the Trustee and the Paying Agent in its individual or any other capacity
may become the owner or pledgee of Certificates with the same rights it would
have if it were not the Trustee or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE AND THE PAYING
AGENT.
(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, organized and doing business under the laws of the United States of
America or any state, 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 "Prime-1" by Xxxxx'x and whose long-term senior unsecured debt is at all
times rated not less than "Aa3" by Xxxxx'x and "AA-" by Fitch (or "A+" by Fitch
if the Trustee's short-term unsecured debt is rated at least "F-1" by Fitch),
provided, that if a Fiscal Agent meeting the requirements of Section 7.19(a) is
then currently acting in such capacity, and has a long term unsecured debt
rating of 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), and "Aa3" by
Xxxxx'x, then the Trustee must be rated not less than "A-" by Fitch and "A3" by
Xxxxx'x, or 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 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 be
rated at least "A" by Fitch
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and "A2" by Xxxxx'x, or a rating otherwise acceptable to the Rating Agencies, as
evidenced by Rating Agency Confirmation.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE OR THE PAYING
AGENT.
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer, the Special Servicer, the Swap Counterparty
and the Rating Agencies; provided that such resignation shall not be effective
until its successor shall have accepted the appointment. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor trustee
or paying agent, as the case may be, except in the case of the initial Trustee
in which case it shall be so replaced but may be replaced under this paragraph,
by written instrument, one copy of which instrument shall be delivered to the
resigning Trustee, one copy to the successor trustee and one copy to each of the
Master Servicer, the Special Servicer, the Paying Agent and the Rating Agencies.
If no successor trustee or paying agent shall have been so appointed, as the
case may be, and shall have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee or the Paying Agent, as the
case may be, may petition any court of competent jurisdiction for the
appointment of a successor trustee or paying agent, as the case may be. It shall
be a condition to the appointment of a successor trustee that such entity
satisfies the eligibility requirements set forth in Section 7.5 and, for so long
as the Trust, and with respect to any Serviced Companion Mortgage Loan, the
trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, shall have been consented to by the Depositor
or the depositor in such Other Securitization, as the case may be (which consent
shall not be unreasonably withheld).
(b) If at any time (i) the Trustee 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, (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) if the Trustee fails to perform (or acts
with negligence, bad faith or willful misconduct in performing) any of its
obligations set forth in Article XIII, 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 Servicer, the Special
Servicer 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.
(c) Following the Closing Date, for so long as the Trust, and with
respect to any Serviced Companion Mortgage Loan, the trust in the related Other
Securitization, are subject
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to the reporting requirements of the Exchange Act, the Paying Agent may not
appoint any sub-servicer that is or could become a Reporting Servicer without
the prior written consent of the Depositor or the depositor in such Other
Securitization, as the case may be, which consent shall not be unreasonably
withheld.
(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), (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, (v) if the Paying Agent shall fail (other than by reason
of a Master Servicer's or Special Servicer's failure to timely perform its
obligations hereunder), to timely publish any report to be delivered, published
or otherwise made available by the Paying Agent pursuant to Sections 5.4 and 5.5
and such failure shall continue unremedied for a period of five days, (vi) if
the Paying Agent should fail to make distributions required pursuant to Section
5.3, Section 10.1 or Article VI or (vii) if the Paying Agent fails to perform
(or acts with negligence, bad faith or willful misconduct in performing) any of
its obligations set forth in Article XIII (other than the failure to file any
Exchange Act report due to the non-receipt of the Exchange Act reportable
information from the Master Servicer or Special Servicer), 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 Servicer, the Special Servicer 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 Principal Balance Certificates then outstanding may without cause at any
time upon written notice to the Trustee or the Paying Agent, as the case may be,
and to the Depositor remove the Trustee or the Paying Agent, as the case may be,
by such written instrument, signed by such Holders or their attorney-in-fact
duly authorized, one copy of which instrument shall be delivered to the
Depositor and one copy to the Trustee or the Paying Agent, as the case may be,
so removed; the Depositor shall thereupon use its best efforts to appoint a
successor Trustee or Paying Agent, as the case may be, in accordance with this
Section.
(f) Any resignation or removal of the Trustee or the Paying Agent, as
the case may be, and appointment of a successor trustee or paying agent pursuant
to any of the provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee or paying agent, as the case may be, as
provided in Section 7.7. Upon any succession of the
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Trustee or the Paying Agent under this Agreement, the predecessor Trustee or
Paying Agent, as the case may be, shall be entitled to the payment of
compensation and reimbursement agreed to under this Agreement for services
rendered and expenses incurred. The Trustee or the Paying Agent shall not be
liable for any action or omission of any successor Trustee or Paying Agent, as
the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE OR PAYING AGENT.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein. The predecessor Trustee
or Paying Agent shall deliver (at such predecessor's own expense) to the
successor Trustee or Paying Agent all Mortgage Files and documents and
statements related to the Mortgage Files held by it hereunder, and the
predecessor Trustee shall duly assign, transfer, deliver and pay over (at such
predecessor's own expense) to the successor Trustee, the entire Trust, together
with all instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer. The predecessor Trustee or Paying
Agent, as the case may be, shall also deliver all records or copies thereof
maintained by the predecessor Trustee or Paying Agent in the administration
hereof as may be reasonably requested by the successor Trustee or Paying Agent,
as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment as
provided in this Section unless at the time of such appointment such successor
Trustee or Paying Agent, as the case may be, shall be eligible under the
provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or Paying
Agent as provided in this Section, the successor Trustee or Paying Agent shall
mail notice of the succession of such Trustee or Paying Agent hereunder to all
Holders of Certificates at their addresses as shown in the Certificate Register
and to the Rating Agencies. The expenses of such mailing shall be borne by the
successor Trustee or Paying Agent. If the successor Trustee or Paying Agent
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or Paying Agent, the Master Servicer shall cause such notice
to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE OR PAYING AGENT. Any
Person into which the Trustee or Paying Agent may be merged or converted or with
which it
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may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee or Paying Agent shall be a party, or any
Persons succeeding to the business of such Trustee or Paying Agent, shall be the
successor of such Trustee or Paying Agent, as the case may be, hereunder, as
applicable, provided that (i) such Person shall be eligible under the provisions
of Section 7.5, and (ii) for so long as the Trust, and with respect to any
Serviced Companion Mortgage Loan, the trust in the related Other Securitization,
are subject to the reporting requirements of the Exchange Act, shall have been
consented to by the Depositor or the depositor in such Other Securitization, as
the case may be, (which consent shall not be unreasonably withheld), without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer 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 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.
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(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 the Master Servicer hereunder) the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
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(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 Depositor's consent, which consent shall not be
unreasonably withheld, the Trustee, at its sole cost and expense, may appoint at
any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as Paying Agent
hereunder. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
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SECTION 7.11 INDEMNIFICATION OF TRUSTEE AND THE PAYING AGENT.
(a) The Trustee, Certificate Registrar and the Paying Agent (each such
institution in its respective individual capacity and including in each case any
other capacity it holds under this Agreement) and each of their 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 the Master Servicer, the
Special Servicer or the Depositor or of each other such Person hereunder but
only to the extent the Trustee, the Certificate Registrar or the Paying Agent,
as the case may be, is unable to recover within a reasonable period of time such
amount from such third party pursuant to this Agreement) including the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder and the
Trustee, the Certificate Registrar and the Paying Agent and each of their
respective directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any unanticipated loss,
liability or expense incurred in connection with the provision by the Trustee,
the Certificate Registrar and the Paying Agent of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be, shall have given the
Depositor, the Master Servicer, the Seller, each other and the Holders of the
Certificates written notice thereof promptly after a Responsible Officer of the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
shall have actual knowledge thereof; provided, however, that failure to give
such notice to the Depositor, Master Servicer, the Seller, each other and the
Holders of Certificates shall not affect the Trustee's, Certificate Registrar's
or Paying Agent's, as the case may be, rights to indemnification herein unless
the Depositor's defense of such claim on behalf of the Trust is materially
prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, shall
cooperate and consult fully with the Depositor in preparing such defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
entered into without the prior consent, which consent shall not be unreasonably
withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Certificate
Registrar or the Paying Agent, as the case may be.
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(c) The Depositor shall indemnify and hold harmless the Trustee, 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 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
Securities Act, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or
arises out of, or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made, not
misleading and shall reimburse the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such 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 Certificate Registrar or the Paying
Agent, as the case may be, furnished to the Depositor by or on behalf of such
person specifically for inclusion therein. It is hereby expressly agreed that
the only written information provided by the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, for inclusion in the Preliminary
Prospectus Supplement and Final Prospectus Supplement is set forth in the case
of the Trustee in the first paragraph under the caption entitled "TRANSACTION
PARTIES--The Trustee and the Custodian" and in the case of the Paying Agent, the
first paragraph (excluding the last two sentence thereof) under the caption
entitled "TRANSACTION PARTIES--The Paying Agent, the Certificate Registrar, and
the Authenticating Agent." The Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the Seller
if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to such person)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Depositor shall not affect any rights the Trustee, the Certificate Registrar or
the Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent. The Depositor shall not be indemnified by the Trust for any
expenses incurred by the Depositor arising from any violation or alleged
violation of the Securities Act or Exchange Act by the Depositor.
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SECTION 7.12 FEES AND EXPENSES OF TRUSTEE AND THE PAYING AGENT. The
Trustee shall be entitled to receive the Trustee Fee (other than the portion
thereof constituting the Paying Agent Fee) and 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), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee and the Paying Agent.
The Trustee and the Paying Agent shall also be entitled to recover from the
Trust all reasonable unanticipated expenses and disbursements incurred or made
by the Trustee and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the 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.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant
to this Agreement, the Trustee shall be the successor in all respects to the
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 the Master Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the 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 the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement), except any ongoing obligations to the
applicable Primary Servicer arising after the termination of the Master Servicer
from their servicing rights and obligations under the applicable Primary
Servicing Agreement. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability granted to the Master Servicer in
this Agreement. As compensation therefor, the Trustee shall be
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entitled to receive all the compensation payable to the Master Servicer set
forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act as the Master
Servicer as hereinabove provided. Any entity designated by the Trustee as
successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for the Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree subject to Section 8.10,
provided that no such compensation shall be in excess of that permitted to be
paid to the Master 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 Master Servicer shall cooperate with the
Trustee and any successor servicer in effecting the termination of the 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 (including any
subservicing agreements) and records in its possession in electronic or other
form reasonably requested by the successor servicer to enable the successor
servicer to assume the 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 the Master Servicer in the Certificate Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received by the 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 Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the 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 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, 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,
subject to Section 9.21(d), have all the rights and powers and be subject to all
the responsibilities, duties and liabilities relating thereto and arising
thereafter placed on 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
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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, subject
to Section 9.21(d), 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,
subject to Section 9.21(d), out of payments on Mortgage Loans as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted to the 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 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 the 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.
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SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of, or an Event
of Default by, the Master Servicer, the Paying Agent or the Special Servicer, or
appointment of a successor to the 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 Seller and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE AND THE
PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into
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question the validity of this Agreement, or which would be likely to impair
materially the ability of the Trustee to perform under the terms of this
Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) it is a national banking association, duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full power and authority to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent that,
either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
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SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE AND THE PAYING AGENT. Each of the Trustee and the
Paying Agent, at its own respective expense, shall maintain in effect a Fidelity
Bond and a Errors and Omissions Insurance Policy. The Errors and Omissions
Insurance Policy and Fidelity Bond shall be issued by a Qualified Insurer in
form and in amount customary for trustees or paying agents in similar
transactions (unless the Trustee or the Paying Agent, as the case may be, self
insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the
Paying Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee or the Paying Agent, as the case may be, is not less than "A" as rated
by Fitch, if rated by Fitch, and "Baa1" as rated by Xxxxx'x, if rated by
Xxxxx'x, respectively, the Trustee or the Paying Agent, as the case may be, may
self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.
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 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:
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(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 the
Paying Agent or appointment of a successor to the Trustee or the 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 APPOINTMENT OF A FISCAL AGENT.
(a) In order to satisfy the eligibility requirements of Section 7.5
(insofar as such requirements relate to ratings), the Trustee may appoint a
Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from Fitch (or "A+" from Fitch, if such Fiscal
Agent's short-term unsecured debt rating is at least "F-1" by Fitch) and "Aa3"
from Xxxxx'x (or, in the case of either Rating Agency, such other rating as
shall not 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).
(b) To the extent that the Trustee is required, pursuant to the terms
of this Agreement, to make any Advance, whether as successor master servicer or
otherwise, and has failed to do so in accordance with the terms hereof, any
Fiscal Agent appointed by the Trustee shall make such Advance as and when
required by the terms of this Agreement on behalf the Trustee as if such Fiscal
Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes an
Advance pursuant to this Section 7.19(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and
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indemnities that the Trustee is entitled to hereunder as if it were the Trustee,
except that all fees and expenses of any Fiscal Agent (other than any interest
owed to such Fiscal Agent in respect of unreimbursed Advances) incurred by such
Fiscal Agent in connection with the transactions contemplated by this Agreement
shall be borne by the Trustee, and neither the Trustee nor such Fiscal Agent
shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section 7.19
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.19(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the holders of any Servicer Companion Mortgage Loan in
writing of the appointment, resignation or removal of any Fiscal Agent.
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, the
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
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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 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 Serviced Companion
Mortgage Loan, all taken as a collective whole taking into account the
subordinate nature of the B Note); provided, however, that nothing herein
contained shall be construed as an express or implied guarantee by the 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 Master Servicer, including with
respect to Master Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clauses
(x) or (z) 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, the 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, (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 or (z) if a payment default shall have occurred on a
Mortgage Loan at its Maturity Date and the Mortgagor has notified the Master
Servicer of its intent to refinance such Mortgage Loan and is diligently
pursuing such refinancing.
(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 Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master Servicer or
the applicable Primary Servicer shall notify the Special Servicer to such effect
and the 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 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 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
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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, the
Trustee, the Master Servicer and the Special Servicer recognize the respective
rights and obligations of the Trust and the holders of each Serviced Companion
Mortgage Loan under the related Loan Pair Intercreditor Agreement, including,
with respect to the allocation of collections on or in respect of any Serviced
Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan in accordance with
the related Loan Pair Intercreditor Agreement. The Master Servicer shall comply
with the applicable provisions of each Loan Pair Intercreditor Agreement, and if
any Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage Loan are
then Specially Serviced Mortgage Loans, the Special Servicer shall comply with
the applicable provisions of the related Loan Pair Intercreditor Agreement. 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 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 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, the 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 THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in
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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 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 Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Master Servicer is not in
any event less than "A" as rated by Fitch and "Baa1" as rated by Xxxxx'x,
respectively, the 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 Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27, 9.39 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. In addition, subject to Section 8.18 hereof, the Master
Servicer, consistent with the Servicing Standard, may waive any default interest
and Late Fees with respect to the Mortgage Loans (or a Serviced Companion
Mortgage Loan to the extent such default interest and Late Fees are not required
to be used to offset interest on advances of the Other Master Servicer for any
P&I Advance made by such Other Master Servicer under the Other Pooling and
Servicing Agreement, if such Serviced Companion Mortgage Loan is deposited into
an Other Securitization) that are not Specially Serviced Mortgage Loans;
provided that, to the extent the Master Servicer waives any default interest and
Late Fees, any outstanding Advance Interest with respect to the related Mortgage
Loan (or Serviced Companion Mortgage Loan, as applicable) that would otherwise
have been paid out of such default interest and Late Fees shall be paid out of
the additional servicing compensation payable to such Master Servicer with
respect to that Mortgage Loan (or Serviced Companion Mortgage Loan, as
applicable); and provided, further, that if no additional servicing compensation
is available to offset the outstanding Advance Interest with respect to the
Mortgage Loan (or Serviced Companion Mortgage Loan) that would otherwise be
offset by the default interest and Late Fees, then the Master Servicer shall not
waive such default interest and Late Fees unless it is the first such waiver
with respect to the subject Mortgage Loan (or Serviced Companion Mortgage Loan,
as applicable). Notwithstanding the above, the 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. In addition, subject to the Servicing
Standard, the Master Servicer shall not accept any prepayment of principal with
respect to any Mortgage Loan on any date other than the related Due Date unless
(i) such payment is accompanied by a payment of the interest due with respect to
such Mortgage Loan up to the next succeeding Due Date, (ii) such prepayment does
not result in the Trust incurring a Prepayment Interest Shortfall or (iii) such
prepayment is required to be permitted under the related Mortgage Loan documents
or applicable law on a date other than the related Due Date; provided that the
payment of the related Prepayment Interest Shortfall shall be deemed to cure a
breach of the covenant in this sentence. Nothing contained in this Agreement
shall limit the ability of the 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 the Master Servicer was not a
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party to this Agreement or to the transactions contemplated hereby; provided,
however, that this sentence shall not modify the Servicing Standard.
(b) The 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 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 Master
Servicer shall give notice within one (1) Business Day 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 the
Master Servicer. The Special Servicer shall instruct within one Business Day
after receiving such notice the Master Servicer on how to apply such funds. The
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 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 the Power of Attorney attached hereto as Exhibit S-1. The Master
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of additional unexecuted
powers of attorney from the Master Servicer or the Special Servicer, the Trustee
shall execute and return to the Master Servicer, the Special Servicer or any
Primary Servicer any additional powers of attorney and other documents necessary
or appropriate to enable the 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 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 the Master Servicer. Notwithstanding anything contained herein to
the contrary, neither the 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 the 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 the Master Servicer or
the Special Servicer, as the case may be, is servicing pursuant to its
respective duties herein (in which case the 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.
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(d) The 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 Master Servicer (or the applicable Primary Servicer on its
behalf) 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 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 the Certificate Account (or any
sub-account thereof) to reimburse the Master Servicer for any Advance (or the
Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the 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 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 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
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schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established; (ii) the Master Servicer shall be
entitled to all income and gain realized from any such investment of funds as
additional servicing compensation; and (iii) the Master Servicer shall deposit
from its own funds in the applicable Escrow Account the amount of any loss
incurred in respect of any such investment of funds on or before the next Master
Servicer Remittance Date. The Master 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 the Master Servicer shall not be required to invest
amounts on deposit in Escrow Accounts in Eligible Investments or Eligible
Accounts to the extent that the 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 Master Servicer is not
entitled to direct the investment of such funds, (1) the 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 the Master Servicer to invest such funds
in accordance with the Mortgagor's directions; and (2) in the absence of
appropriate written instructions from the Mortgagor, the Master 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 the Master Servicer to meet the payment obligations for which the
Escrow Account was established, and (ii) the 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 Servicer 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
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 the 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 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 Master Servicer or the applicable Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The 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 the 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
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anniversary of the Closing Date, the Master Servicer, in connection with the
defeasance of a Mortgage Loan shall require (to the extent it is not
inconsistent with the Servicing Standard) that: (i) the defeasance collateral
consists of Qualifying Government Securities as defined in Section 2(a)(16) of
the Investment Company Act of 1940, as amended, that are acceptable as
defeasance collateral under the current guidelines of the Rating Agencies, (ii)
the 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) the Master
Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans, (iv) the 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 an ARD Loan, on or
before its 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 Aggregate Certificate Balance, unless such Rating
Agency has waived in writing such Rating Agency Confirmation requirement (or
such higher threshold, if any, as shall be published by the Rating Agencies) 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 (or such less restrictive forms, if any, as shall
be adopted by the Rating Agencies) or a Rating Agency Confirmation is received
from S&P and (vi) a Rating Agency Confirmation is received if the Mortgage Loan
is one of the ten largest Mortgage Loans, by Principal Balance. Any customary
and reasonable out-of-pocket expense incurred by the 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 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 Master Servicer shall request the Seller to make such payment by deposit to
the Certificate Account.
In the case of a Specially Serviced Mortgage Loan, the 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 the 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
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not have occurred or be continuing, and the 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 Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after the
Closing Date, the Seller has notified the related ground lessor of the transfer
of such Mortgage Loan to the Trust pursuant to this Agreement and informed such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer (as evidenced by delivery of a
copy thereof to the Master Servicer). The Master Servicer shall promptly notify
the ground lessor if the Seller has failed to do so by the thirtieth day after
the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of any
B Note has agreed that the Master Servicer and the Special Servicer are
authorized and obligated to service and administer the B Note pursuant to this
Agreement. The 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
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 Master Servicer's obligations and responsibilities hereunder
and the 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 Master Servicer
shall use reasonable best efforts consistent with the Servicing Standard to
monitor 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 pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and to 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 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
cxciii
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 Master Servicer
and the Special Servicer are authorized and obligated to service and administer
the Serviced Companion Mortgage Loan pursuant to this Agreement. The Master
Servicer and the Trustee 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 dated as of the Closing Date 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 such Loan Pair
Intercreditor Agreement and such letter agreement taken together, as applicable.
To the extent that the Master Servicer and/or the Trustee have duties and
obligations under any such letter agreement, each successor master servicer
and/or successor trustee, respectively, under this Agreement shall perform such
duties and satisfy such obligations.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The Master Servicer shall supervise, administer, monitor, enforce
and oversee the servicing of the applicable Mortgage Loans by any Sub-Servicer
appointed by it. Other than with respect to the agreements with any Primary
Servicer or the Sub-Servicers under agreements that are in effect as of the
Closing Date, the terms of any arrangement or agreement between the Master
Servicer 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 Special Servicer, the
Paying Agent, 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 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 Master Servicer or a Sub-Servicer, or
reference to actions taken through a Sub-Servicer or otherwise, the Master
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, 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 the Master Servicer alone
were servicing and administering the Mortgage Loans.
cxciv
(b) Subject to the limitations of subsection (a), the Master Servicer
may appoint one or more sub-servicers to perform all or any portion of its
duties hereunder for the benefit of the Trustee and the Certificateholders,
provided, however, that after the Closing Date, for so long (but only for so
long) as the Trust, and, with respect to any Serviced Companion Mortgage Loan,
the trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, no Master Servicer or Special Servicer shall
enter into a sub-servicing agreement with any party that is a Prohibited Party.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) each Primary Servicer's (if any) and each Seller Sub-Servicer's
rights and obligations under the respective Primary Servicing Agreement or
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the applicable
Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated
in accordance with its provisions; (ii) any successor Master Servicer,
including, without limitation, the Trustee (if it assumes the servicing
obligations of the Master Servicer) shall be deemed to automatically assume and
agree to the then current Primary Servicing Agreement or Sub-Servicing
Agreements with Seller Sub-Servicers without further action upon becoming the
successor Master Servicer and (iii) this Agreement may not be modified in any
manner which would increase the obligations or limit the rights of the Primary
Servicer or Seller Sub-Servicer hereunder and/or under the applicable Primary
Servicing Agreement or the related Sub-Servicing Agreement, without the prior
written consent of such Primary Servicer or such Seller Sub-Servicer (which
consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to the
Primary Servicer under the Primary Servicing Agreement, and such task, right or
obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer is neither a party to
the Primary Servicing Agreement or any Seller Sub-Servicing Agreement, nor is it
bound by any provision of the Primary Servicing Agreement or any Seller
Sub-Servicing Agreement. The Special Servicer hereby acknowledges the delegation
of rights and duties hereunder by the Master Servicer pursuant to the provisions
of any Primary Servicing Agreement or Seller Sub-Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, any sub-servicing
agreement with a Sub-Servicer shall provide that (i) the failure of the related
Sub-Servicer to comply with any of the requirements of Article XIII of this
Agreement, (ii) the failure of the related Sub-Servicer to comply with any
requirements to deliver any items required by Items 1122 and 1123 of Regulation
AB under any other pooling and servicing agreement relating to any commercial
mortgage loan securitization similar to the Subject Securitization Transaction
or (iii) any Sub-Servicer who is deemed to be a Prohibited Party at any time
during which the Trust is subject to the reporting requirements of the Exchange
Act shall constitute an event of default by such Sub-Servicer upon the
occurrence of which either the Master Servicer, the Special
cxcv
Servicer or the Depositor shall immediately terminate the related Sub-Servicer
and that such termination shall be deemed for cause.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and
any Primary Servicer and any agent of the Master Servicer or any Primary
Servicer in their 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
Master Servicer or such agent. Any such interest of the Master Servicer or any
Primary Servicer or such agent in the Certificates shall not be taken into
account when evaluating whether actions of the 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 the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES
AND OTHER. Subject to the limitations set forth below, the 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 or Acts 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 the 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 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 Master Servicer shall cause such insurance to be maintained with
a Qualified Insurer. The Master Servicer shall be deemed to have satisfied its
obligations with respect to clause (A) above if the Mortgagor maintains, or the
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 the 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 "acts of terrorism" as defined by the Terrorism
Risk Insurance Act of 2002, to the extent that coverage under such a
nonexclusion is available at a commercially reasonable rate (subject to the
conditions regarding terrorism insurance coverage described further below in
this subsection).
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
cxcvi
Property are located in a designated special flood hazard area by the Federal
Emergency Management Agency in the Federal Register, as amended from time to
time (to the extent permitted under the related Mortgage Loan or as required by
law), the 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 Master Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or property thus acquired or amounts
released to the Mortgagor in accordance with the terms of the applicable
Mortgage Loan) shall be deposited in the 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 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 Master Servicer, subject
to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to cause the Mortgagor to maintain
or itself obtain insurance coverage to the extent the Trustee as mortgagee does
not have an insurable interest or beyond what is available on commercially
reasonable terms at a cost customarily acceptable (in each case, as determined
by the 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
the 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 the 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 the 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 the 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 Master Servicer shall prior to
availing itself of any limitation described in that sentence with respect to any
Mortgage Loan (or any component loan of an A/B Mortgage Loan) that has a
principal balance in excess of $2,500,000, obtain the approval or disapproval of
the Special Servicer and the Operating Adviser (subject to the penultimate
paragraph of Section 9.39). The Master Servicer
cxcvii
shall be entitled to rely on the determination of the Special Servicer made in
connection with such approval or disapproval. The Special Servicer shall decide
whether to withhold or grant such approval in accordance with the Servicing
Standard. If any such approval has not been expressly denied within seven (7)
Business Days of receipt by the Special Servicer and Operating Adviser from the
Master Servicer of the Master Servicer's determination and analysis and all
information reasonably requested by the Special Servicer and reasonably
available to the Master Servicer in order to make an informed decision, such
approval shall be deemed to have been granted. The 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.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the 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 the Master Servicer,
provided that its long-term rating is not less than "A2" by Xxxxx'x and "A" by
Fitch, self-insures for its obligations as set forth in the first paragraph of
this Section 8.6. In the event that the 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 the Master Servicer as a Servicing Advance. If such
policy contains a deductible clause, the 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 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 Master
Servicer agrees to present, on its behalf and on behalf of the Trustee and the
holders of any Serviced Companion Mortgage Loan or any B Note, claims under any
such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the 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 Master Servicer (other than
with respect to REO Mortgage Loans) shall, except in the case of Mortgage Loans
under which Escrow Amounts are not held by the Master Servicer, (i) obtain all
bills for the payment of such items (including renewal premiums), and (ii)
effect payment of all
cxcviii
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 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 Master Servicer or the Trustee as the case may be, in
effecting the payment of taxes and assessments on the Mortgaged Properties and
related insurance premiums and ground rents shall, for the purpose of
calculating distributions to Certificateholders, be added to the Principal
Balance of the Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans permit such costs to be added to the outstanding Principal Balances of
such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE AND DUE-ON-ENCUMBRANCE CLAUSES;
ASSUMPTION AGREEMENTS; OTHER PROVISIONS.
(a) (i) As to each Mortgage Loan (or a Serviced Companion Mortgage
Loan or B Note) which contains a provision in the nature of a "due-on-sale"
clause, which by its terms:
(A) provides that such Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note) shall (or may at the mortgagee's option)
become due and payable upon (i) the full or partial sale or other
transfer of an interest in the related Mortgaged Property or (ii) a
sale or transfer of direct or indirect ownership interests in the
related Mortgagor;
(B) provides that such Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note) may not be assumed without the consent of the
mortgagee in connection with any such sale or other transfer; or
(C) provides that such Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note) or direct or indirect ownership interests in
the related Mortgagor may be assumed or transferred without the
consent of the mortgagee provided certain conditions set forth in the
Mortgage Loan documents are satisfied;
the Master Servicer shall forward to the Special Servicer any request for a
waiver thereof, and the Special Servicer shall, if and to the extent necessary,
enforce such due-on-sale clause. For the avoidance of doubt, the Master Servicer
may not waive any due-on-sale clause in, or consent to the assumption of, any
Mortgage Loan (or Serviced Companion Mortgage Loan or B Note), or make any
determination with respect to any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), which by its terms permits a transfer or assumption of the
related Mortgage Loan (or Serviced Companion Mortgage Loan or B Note) without
lender consent provided certain conditions are satisfied, that such conditions
have been satisfied. The Special Servicer shall enforce such due-on-sale clause
unless the Special Servicer determines, in accordance with the Servicing
Standard, that (1) not declaring an Event of Default (as defined in
cxcix
the related Mortgage Loan documents) or (2) granting such consent, as
applicable, would be likely to result in a greater recovery (or an equal
recovery, provided the other conditions for an assumption or waiver of a
due-on-sale clause are met), on a present value basis (discounting at the
related Mortgage Rate), than would enforcement of such clause or the failure to
grant such consent. If the Special Servicer determines that (1) not declaring an
Event of Default (as defined in the related Mortgage Loan documents) or (2)
granting such consent, as applicable, would be likely to result in a greater
recovery (or an equal recovery, provided that the other conditions for an
assumption or waiver of a due-on-sale clause are met), the Special Servicer
shall take or enter into an assumption agreement from or with the proposed
transferee as obligor thereon, provided that (x) the credit status of the
prospective transferee is in compliance with the Servicing Standard and the
terms of the related Mortgage Loan documents and (y) with respect to any
Mortgage Loan which is a Significant Mortgage Loan, the applicable Special
Servicer shall have received Rating Agency Confirmation that such assumption
would not, in and of itself, cause a downgrade, qualification or withdrawal of
any of the then-current ratings assigned to the Certificates. To the extent
permitted by the related Mortgage Loan documents, the Special Servicer shall use
reasonable efforts to cause the related Mortgagor to pay the costs of such
Rating Agency Confirmation, otherwise, such costs shall be a Trust expense.
(ii) Notwithstanding the provisions of any Mortgage Loan,
foreclosure by the holder of a mezzanine loan on any collateral
securing a mezzanine loan to an affiliate of the related Mortgagor
shall not, for purposes of this Agreement, be deemed to be a violation
of the due-on-sale clause of the related Mortgage Loan documents or of
clause (i) of this Section 8.7(a) so long as the foreclosing party is
a Permitted Mezzanine Loan Holder, and other material requirements of
the related intercreditor agreement are satisfied.
(iii) Neither the Master Servicer nor the Special Servicer
shall (x) consent to the foreclosure of any mezzanine loan other than
by a Permitted Mezzanine Loan Holder or (y) consent to the transfer of
any mezzanine loan except to a Permitted Mezzanine Loan Holder,
except, in each case, as otherwise provided in Section 8.7(a)(i).
Neither the consent of the Master Servicer nor the consent of the
Special Servicer shall be required for the foreclosure by a Permitted
Mezzanine Loan Holder if an event of default has been declared under
the related Mortgage Loan(s) (and each Rating Agency has been notified
of such event of default), except as set forth in any related
intercreditor agreement. In no event shall the holder of a mezzanine
loan be required to pay any assumption fee, modification fee or other
service charge in connection with any foreclosure upon any collateral
securing such mezzanine loan, transfer of ownership of the related
Mortgaged Property to such holder of such mezzanine loan and/or
assumption of the related Mortgage Loan; provided, that such
holder of such mezzanine loan may be required to reimburse the Master
Servicer or Special Servicer for any costs or expenses incurred by it
in connection with such foreclosure, transfer and/or assumption.
Nothing herein shall prevent a holder of a mezzanine loan from
appointing a receiver or trustee with respect to any collateral
securing such mezzanine loan, foreclosing upon any reserves, escrow
accounts or cash collateral accounts pledged under the related
mezzanine loan (provided none of such accounts have been pledged under
the related Mortgage Loan) or otherwise taking an assignment of any
cash flows from any collateral securing such mezzanine loan.
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(b) (i) As to each Mortgage Loan (or Serviced Companion Mortgage Loan
or B Note) which contains a provision in the nature of a "due-on-encumbrance"
clause, which by its terms:
(A) provides that such Mortgage Loan (or Serviced Companion
Mortgage Loan or B Note) shall (or, at the mortgagee's option, may)
become due and payable upon (x) the creation of any additional lien or
other encumbrance on the related Mortgaged Property or (y) an
encumbrance, pledge or hypothecation of direct or indirect ownership
interests in the related Mortgagor or its owners (including any
incurrence of mezzanine financing secured by ownership interests in
the related Mortgagor or its owners or the creation of preferred
equity in the related Mortgagor or its owners); or
(B) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property or direct or indirect ownership interests in the related
Mortgagor; or
(C) provides that such Mortgaged Property or direct or indirect
ownership interests in the related Mortgagor may be further encumbered
without the consent of the mortgagee provided certain conditions set
forth in the Mortgage Loan documents are satisfied;
the Master Servicer shall forward to the Special Servicer any request for a
waiver thereof, and the Special Servicer shall, if and to the extent necessary,
enforce such due-on-encumbrance clause. For the avoidance of doubt, the Master
Servicer may not waive any due-on-encumbrance clause in, or consent to the
creation of any such additional lien or other encumbrance on the related
Mortgaged Property securing, any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), or make any determination with respect to any Mortgage Loan (or
Serviced Companion Mortgage Loan or B Note), which by its terms permits
encumbrance without lender consent provided certain conditions are satisfied,
that such conditions have been satisfied. The Special Servicer shall enforce
such due-on-encumbrance clause unless the Special Servicer: (x) determines, in
accordance with the Servicing Standard, that (1) not declaring an event of
default under such Mortgage Loan or (2) granting such consent, as applicable,
would result in a greater or equal recovery on a present value basis
(discounting at the related Mortgage Rate) than would enforcement of such clause
or the failure to grant such consent; and (y) (A) with respect to any Mortgage
Loan which (i) is a Significant Mortgage Loan or represents 2% or more of the
aggregate outstanding principal balances of all of the Mortgage Loans in the
Trust or (ii) by itself, or as part of a Cross-Collateralized Loan group or
group of Mortgage Loans with affiliated Mortgagors has (a) a Loan-to-Value Ratio
equal to or greater than 85% or (b) a Debt Service Coverage Ratio equal to or
less than 1.2x (in each case, treating the existing debt on the subject
Mortgaged Property and the proposed additional debt as if such total debt were a
single Mortgage Loan), receives from Xxxxx'x and (B) with respect to any
Mortgage Loan that is one of the ten largest Mortgage Loans by Stated Principal
Balance of all Mortgage Loans at such time (treating any group of
Cross-Collateralized Mortgage Loans or any group of Mortgage Loans with
affiliated Mortgagors as a single Mortgage Loan), receives from Fitch, prior
Rating
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Agency Confirmation that (1) not declaring an event of default under such
Mortgage Loan or (2) granting such consent, as applicable, would not, in and of
itself, cause a downgrade, qualification or withdrawal of any of the
then-current ratings assigned to the Certificates. To the extent permitted by
the related Mortgage Loan documents, the Special Servicer shall use reasonable
efforts to cause the Mortgagor to pay the costs associated with such Rating
Agency Confirmation, otherwise, such costs shall be a Trust expense.
If the Special Servicer, in accordance with the Servicing Standard,
determines with respect to any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), which by its terms permits transfer, assumption or further
encumbrance without lender consent provided certain conditions are satisfied,
that such conditions have not been satisfied, then the Master Servicer will use
reasonable efforts to not permit the transfer, assumption or further encumbrance
with respect to such Mortgage Loan (or Serviced Companion Mortgage Loan or B
Note).
(c) Any approval required to be obtained by the Master Servicer from
the Special Servicer for any action taken by the Master Servicer pursuant to
this Section 8.7 with respect to a non-Specially Serviced Mortgage Loan (or
Serviced Companion Mortgage Loan or B Note) (the giving of which approval shall
be subject to the Servicing Standard and Section 8.19) shall be deemed given if
not denied in writing within fifteen (15) Business Days (or, in the case of an
assumption transaction, fifteen (15) days) after receipt by the Special Servicer
of the Master Servicer's written recommendation and analysis and any additional
information requested by the Special Servicer or the Operating Adviser, as
applicable. If any such action taken by the Master Servicer pursuant to this
Section 8.7 requires the approval of the Operating Adviser, then such approval
shall be deemed given if not denied in writing within fifteen (15) Business Days
(or, in the case of an assumption transaction, fifteen (15) days), which
15-Business Day (or 15 day, as applicable) period shall coincide with the
Special Servicer's 15-Business Day (or 15 day, as applicable) period to object
set forth in the preceding sentence. Nothing in this Section 8.7 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assumption of a Mortgage Loan, any sale or other transfer
of the related Mortgaged Property or the creation of any additional lien or
other encumbrance with respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 8.18, the Special
Servicer shall not agree to modify, waive or amend any payment term of any
Mortgage Loan (or Serviced Companion Mortgage Loan or B Note) in connection with
the taking of, or the failure to take, any action pursuant to this Section 8.7.
(e) With respect to any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note) that permits the related Mortgagor to incur subordinate
indebtedness secured by the related Mortgaged Property, the Master Servicer or
the Special Servicer, as applicable, shall enforce the rights of the lender, if
any, under the related Mortgage Loan documents to require such Mortgagor to
require the lender of such subordinate indebtedness to enter into a
subordination and standstill agreement with the Trust.
(f) With respect to any Mortgage Loan (or Serviced Companion Mortgage
Loan or B Note), subject to the related Mortgage Loan documents, neither the
Master Servicer nor the Special Servicer shall permit the related Mortgagor to
substitute any real property, any
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rights with respect to real property, or any other real property interest
whatsoever for the Mortgaged Property securing such Mortgage Loan (or Serviced
Companion Mortgage Loan or B Note) as of the Closing Date without receipt of an
Opinion of Counsel, at the expense of the Mortgagor, to the effect that the
substitution will not cause the related Mortgage Loan to fail to qualify as a
"qualified mortgage" as defined under Section 860G(a)(3) of the Code while such
Mortgage Loan is owned by either REMIC Pool.
(g) In addition, the Special Servicer acknowledges that, pursuant to
each Primary Servicing Agreement with a Primary Servicer (if any) and
Sub-Servicing Agreement, the Master Servicer has delegated certain tasks, rights
and obligations with respect to certain of the Mortgage Loans.
(h) With respect to any Loan Pair or A/B Mortgage Loan,
notwithstanding anything contained in this Section 8.7, with respect to any
matter contained in this Section 8.7 that requires the consent of the Master
Servicer, the Special Servicer or the Operating Adviser, as applicable, such
consent shall be obtained in accordance with the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable, and within the time periods
set forth therein.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF 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 Master Servicer of a notification
that payment in full (or such payment, if any, in connection with the
satisfaction and discharge in full of any Specially Serviced Mortgage Loan) will
be escrowed in a manner customary for such purposes, and upon notification by
the 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
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Custodian shall execute and deliver to the 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
the 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, the Master Servicer shall 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 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 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 Master Servicer except to the extent that such
expenses are paid by the related
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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 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
the 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, the Master Servicer
shall transmit to the Trustee, and the Paying Agent, to the extent required by
this Agreement, all documents and instruments coming into the possession of the
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 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, including any funds
on deposit in the Certificate Account (or any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account), shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders (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 Master Servicer agrees that it
shall not create, incur or subject any Servicer Mortgage Files or Trustee
Mortgage File or any funds that are deposited in the Certificate Account or any
Escrow Account, or any funds that otherwise are or may become due or payable to
the Trustee or the Paying Agent, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Servicer Mortgage
Files or Trustee Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that the Master Servicer shall be entitled to
receive from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to the Master Servicing Fee, which shall be payable by the
Trust from amounts held in the 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 Master Servicer shall be required
to pay to the applicable Primary Servicer its Primary Servicing Fees, which
shall be payable by the Trust from amounts as provided in Section 5.1(c), unless
retained by the applicable Primary Servicer from amounts transferred to the
Master Servicer in accordance with the terms of the applicable Primary Servicing
Agreement. The Master Servicer shall be required to pay to the holders of the
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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 Master Servicer or applicable Primary Servicer, as applicable, for any
reason, it will continue to have the right to receive its portion of the Excess
Servicing Fee, and any of the holders of the right to receive Excess Servicing
Fees shall have the right to assign its portion of the Excess Servicing Fee,
whether or not it is then acting as Master Servicer or Primary Servicer
hereunder. The Master Servicer shall also be entitled to the Primary Servicing
Fee, which shall be payable by the Trust from amounts held in the Certificate
Account (or a sub-account thereof) or otherwise collected from the Mortgage
Loans as provided in Section 5.2, provided that the Primary Servicing Fee
payable to the Master Servicer shall only be collected from the Mortgage Loans
set forth on Schedule III, except as provided in Section 8.28(b).
(b) Additional servicing compensation in the form of assumption
application fees, assumption fees, extension fees, servicing fees, default
interest (excluding default interest 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) payable at a rate above the Mortgage Rate (net of any
amount used to pay Advance Interest, Additional Trust Expenses and Special
Servicing Fees incurred in respect of the related Mortgage Loan (or, with
respect to any Serviced Pari Passu Mortgage Loan, the applicable Loan Pair),
Modification Fees, forbearance fees, Late Fees (net of any amount used to pay
Advance Interest and 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 Master Servicer, provided that
the Master Servicer shall be entitled to receive such compensation as set forth
in Section 5.2(a)(i). If the Master Servicer collects any amount payable to the
Special Servicer hereunder in connection with an REO Mortgage Loan or Specially
Serviced Mortgage Loan, the Master Servicer shall promptly remit such amount to
the Special Servicer as provided in Section 5.2. The Master Servicer shall be
required to pay (in the manner otherwise provided herein) all applicable
expenses incurred by it in connection with its servicing activities hereunder.
(c) The 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 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) the 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 with
respect to such Distribution Date including any information
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regarding prepayments made pursuant to Section 5.2(b) and (ii) the Master
Servicer shall report to the Paying Agent on the related Advance Report Date,
the amount of the P&I Advance, if any, to be made by the 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 the Master Servicer to satisfy its duties in this Section 8.11. The
Master Servicer Remittance Report shall be updated no later than 2:00 p.m. on
the second Business Day prior to the Distribution Date to reflect any payment on
a Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note for which the
Scheduled Payment is paid on a Due Date (or within its grace period) that occurs
after the end of the related Collection Period and the Master Servicer shall
notify the Paying Agent on the Report Date that such an updated Master Servicer
Remittance Report is to be provided.
(b) The Master Servicer shall deliver to the Trustee, the Paying Agent
and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the 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) The Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer 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 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.
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(g) The Master Servicer 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 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) 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 (it being
understood that the applicable Primary Servicer is required to deliver the CMSA
Financial File only quarterly) not later than each Report Date, commencing in
January 2007; (ii) a CMSA Operating Statement Analysis Report and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
CMSA Watch List in accordance with and subject to the terms of Section 8.11(h)
on each Report Date, commencing in January 2007; (iv) a Loan Set-Up File (with
respect to the initial Distribution Date only) not later than the Report Date in
December 2006; (v) a Loan Periodic Update File not later than each Report Date
commencing in December 2006 (which Loan Periodic Update File shall be
accompanied by a CMSA Advance Recovery Report); (vi) a Property File not later
than each Report Date, commencing in January 2007; (vii) a Delinquent Loan
Status Report on each Report Date, commencing in January 2007; (viii) an
Historical Loan Modification Report not later than each Report Date, commencing
in January 2007; and (ix) an REO Status Report on each Report Date, commencing
in January 2007. 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 Master Servicer in writing
and on a computer readable medium reasonably acceptable to the 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. The 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 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 the 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.
(h) For each Distribution Date, the Master Servicer 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 the related Report
Date, a CMSA Watch List. The Master Servicer 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 Master Servicer, in accordance with the Servicing Standard,
seeks to effect a drawing on any letter of credit or debt service reserve
account under which the Trust has rights as the holder of any Mortgage Loan for
purposes other than payment or reimbursement of amounts contemplated in and by a
reserve or escrow agreement (other than after a default under an applicable
Mortgage Loan or B Note), the Master Servicer shall, deliver notice thereof to
the Special Servicer, the Operating Adviser, the holder of a 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
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circumstances that in the Master Servicer's good faith and reasonable judgment
and in compliance with the Servicing Standard will entitle the Master Servicer
to make such drawing. The Special Servicer shall have five Business Days to
consent to such drawing, which consent may be communicated by facsimile
transmission or e-mail and shall not be unreasonably withheld. If the Special
Servicer does not respond within such five Business Day period, consent shall be
deemed to have been given.
(j) The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, but not any Primary Servicer, shall prepare and
deliver (or, other than as relates to the Special Servicer, 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 RESERVED.
SECTION 8.13 RESERVED.
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), commencing with respect to the
quarter ending on March 31, 2007, in each case for the trailing or quarterly
information received, the 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 or make available
electronically to the Paying Agent and the Operating Adviser 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 2007 for year-end 2006, the 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 or
make available electronically 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 operating statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to the
Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgage Loans, as provided to the Special Servicer, which the Special
Servicer shall forward to the 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 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 Master Servicer shall deliver
(which delivery shall be by electronic means) to the
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Operating Adviser, and upon request the 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 the 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 reasonably requested by the Special Servicer,
the 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
Trustee, the Special Servicer, the Operating Adviser, the Depositor and its
designees, the Placement Agents, the Underwriters, and any prospective investors
or Certificate Owners who provide the Paying Agent with an investor
certification satisfactory to the Paying Agent, 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,
the CMSA Operating Statement Analysis Reports, CMSA Financial Files and NOI
Adjustment Worksheets described above pursuant to Section 5.4(a). The Master
Servicer (but not the Primary Servicer under the applicable Primary Servicing
Agreement) 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 SERVICER.
(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, the Primary Servicer, any
Placement Agent, the Trustee 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 (and attachments thereto) 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 and (v) any and all modifications, waivers
and amendments of the terms of a Mortgage Loan entered into by the Master
Servicer and/or the Special Servicer. 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 Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, any Primary Servicer, the Seller, 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,
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non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the Master Servicer's or the Paying
Agent's internet website) or the electronic delivery of such information to the
requesting Person), in each case to the extent in its respective possession, and
access to Servicing Officers of the Master Servicer 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 Master Servicer upon request; provided, however, that the
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 the 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 the Master Servicer 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, the
Master Servicer shall not have any liability to the Depositor, the Trustee, 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 the Master Servicer (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 the Master Servicer from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Paying Agent, the Special Servicer, any Primary Servicer, the
Seller, any Placement Agent, any Underwriter, any Rating Agency and/or the
Certificateholders, the holder of a
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Serviced Companion Mortgage Loan, the holder of a B Note or Certificate Owners.
Any transmittal of information by the Master Servicer to any Person other than
the Trustee, the Paying Agent, the Master Servicer, the Special Servicer, the
Rating Agencies, the Operating Adviser or the Depositor may be accompanied by a
letter from the Master Servicer 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 2006-HQ10 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) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
(g) Once a month, the Master Servicer and the Special Servicer shall,
without charge, make a knowledgeable Servicing Officer available to answer
questions from the Operating Adviser during regular business hours at such time
and for such duration as the Master Servicer or Special Servicer, and the
Operating Adviser shall reasonably agree, regarding the performance and
servicing of the Mortgage Loans and REO Properties for which the Master Servicer
or the Special Servicer, as the case may be, is responsible. As a condition to
such disclosure, the Operating Adviser shall execute a confidentiality agreement
in form reasonably acceptable to the Master Servicer, the Special Servicer and
the Operating Adviser.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the 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 the Master Servicer that is
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities
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Act, including, without limitation, copies of the reports and information
described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the 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
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the 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. The 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 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 2007, or every
second calendar year beginning in 2008 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; (it being understood that
such Mortgaged Properties securing a Mortgage Loan or Loan Pair with a Principal
Balance of less than $2,000,000 will be inspected in the 2008 calendar year and
every second calendar year thereafter) provided that the 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 Master Servicer shall, at the expense of the
Trust and at the request of the Operating Adviser, inspect or cause to be
inspected the related Mortgaged Property every calendar year beginning in 2007
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 Master Servicer shall prepare an Inspection Report relating to
each inspection. The Master Servicer shall promptly forward the applicable
Inspection Report to the Rating Agencies, the Placement Agents, the
Underwriters, the Depositor, the Trustee, the Paying Agent, the Operating
Adviser, the Special Servicer, solely as it relates to any Loan Pair, 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, any Seller and any Primary
Servicer. 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 Master Servicer prior to such
inspection.
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SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
(a) Subject to the provisions of Section 8.19, Section 12.3 and this
Section 8.18 (and, in the case of any Loan Pair or A/B Mortgage Loan, subject to
the terms of the related Loan Pair Intercreditor Agreement or Intercreditor
Agreement, respectively), the Master Servicer and the Special Servicer may, on
behalf of the Trustee, agree to any modification, waiver or amendment of any
term of any Mortgage Loan without the consent of the Trustee or any
Certificateholder.
(i) For any non-Specially Serviced Mortgage Loan (and Serviced
Companion Mortgage Loan Loan or B Note), and subject to the rights of the
Special Servicer set forth below, the Master Servicer shall be responsible
subject to the other requirements of this Agreement with respect thereto, for
any request by a Mortgagor for the consent of the mortgagee or a modification,
waiver or amendment of any term thereof; provided that such consent or
modification, waiver or amendment would not (except as provided in Section 5.1)
affect the amount or timing of any scheduled payments of principal, interest or
other amounts payable under such Mortgage Loan, affect the obligation of the
related Mortgagor to pay a Prepayment Premium or Yield Maintenance Charge or
permit a Principal Prepayment by the Mortgagor during a prepayment lockout
period, result in the release of the related Mortgagor from any material term
thereunder, waive any rights thereunder with respect to any guarantor thereof,
relate to the release or substitution of any material collateral for such
Mortgage Loan or, in the reasonable judgment of the Master Servicer, materially
impair the security for such Mortgage Loan or reduce the likelihood of timely
payments of amounts due thereon; and provided, further, that this Section
8.18(a)(i) does not apply to waivers contemplated by Section 8.2, Section 9.2 or
Section 8.7. To the extent consistent with the foregoing, and subject to the
provisions of this Section 8.18, including, without limitation, Section 8.18(g),
the Master Servicer shall be responsible for approvals or waivers or otherwise
take actions with respect to, as applicable, the following (the following items
not to be considered exclusive):
(A) approving routine leasing activity with respect to: (1)
leases for properties for less than the lesser of (a) 15,000 square
feet and (b) 20% of the related Mortgaged Property; provided that (1)
no subordination, non-disturbance and attornment agreement (an "SNDA")
exists with respect to such lease and (2) no such lease is a Ground
Lease; and provided further that the Master Servicer shall not grant
or approve (but shall forward to the Special Servicer for its
approval) any requests for (or any waiver, consent, approval,
amendment or modification in connection with) an SNDA or approval of a
lease that contains an SNDA;
(B) approving annual budgets for the related Mortgaged Property;
provided that no such budget (1) relates to a fiscal year in which an
Anticipated Repayment Date occurs, (2) provides for the payment of
operating expenses in an amount equal to more than 110% of the amounts
budgeted therefor for the prior year or (3) provides for the payment
of any material expenses to any affiliate of the Mortgagor (other than
the payment of a management fee to any property
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manager if such management fee is no more than the management fee in
effect on the Cut-off Date);
(C) waiving any provision of a Mortgage Loan not requiring the
receipt of a Rating Agency Confirmation if such Mortgage Loan is not a
Significant Mortgage Loan and the related provision of such Mortgage
Loan does not relate to a "due-on-sale" or "due-on-encumbrance" clause
or defeasance (which shall be subject to the terms of Section 8.3(h)
hereof);
(D) subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment;
(E) releases of non-material parcels of a Mortgaged Property;
provided that the Master Servicer shall have determined that no REMIC
Pool will fail to qualify as a REMIC as a result thereof and that no
tax on "prohibited transactions" or "contributions" after the Closing
Date would be imposed on any REMIC Pool as a result thereof; and
provided, further that the Master Servicer shall cause the Mortgagor
to pay the costs (including attorneys' fees and expenses) associated
with the determination described in clause (ii), provided, further,
that releases as to which the related Mortgage Loan documents
expressly require the related Mortgagor thereunder to make such
releases upon the satisfaction of certain terms or conditions shall be
made as required by such Mortgage Loan documents;
(F) with respect to any non-Specially Serviced Mortgage Loans (or
Serviced Companion Mortgage Loans or B Notes), the Master Servicer may
(without the consent of the Special Servicer) grant a Mortgagor's
request for consent to subject the related Mortgaged Property to an
easement, right-of-way or similar agreement for utilities, access,
parking, public improvements or another similar purpose and may
consent to subordination of the related Mortgage Loan(s) (or Serviced
Companion Mortgage Loan(s) or B Note(s)) to such easement,
right-of-way or similar agreement; provided that the Master Servicer
shall have determined (i) in accordance with the Servicing Standard
that such easement, right-of-way or similar agreement will not
materially interfere with the then-current use of the related
Mortgaged Property or the security intended to be provided by such
Mortgage and will not materially or adversely affect the value of such
Mortgaged Property and (ii) that no REMIC Pool will fail to qualify as
a REMIC as a result thereof and that no tax on "prohibited
transactions" or "contributions" after the Closing Date would be
imposed on any REMIC Pool as a result thereof; and provided, further
that the Master Servicer shall cause the Mortgagor to pay the costs
(including attorneys' fees and expenses) associated with the
determination described in clause (ii);
(G) consenting to changing the property manager at the request of
the Mortgagor, for so long as, (A) the successor property manager is
not affiliated
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with the Mortgagor and is a reputable manager of similar properties
and (B) the related Mortgage Loan has an unpaid principal balance of
less than $5,000,000;
(H) waive any Penalty Charges on any non-Specially Serviced
Mortgage Loan in connection with any delinquent payment on such
Mortgage Loan; and
(I) disbursements of any earnouts or holdback amounts;
provided, however, that if in the reasonable judgment of the Master
Servicer any request by a Mortgagor for consent of the mortgagee or any
modification, waiver or amendment in connection with an assumption transaction
of a non-Specially Serviced Mortgage Loan contemplated by Section 8.7 is not
included within the scope of this clause (i), the Master Servicer shall forward
the Mortgagor's request to the Special Servicer for its approval; provided,
further, that with respect to any non-Specially Serviced Mortgage Loan set forth
on Schedule V and any request for the disbursement of any earnouts or holdback
amounts with respect to such non-Specially Serviced Mortgage Loan, it being
understood and agreed that for purposes of this Agreement, the disbursement of
earnouts or holdback amounts shall mean the disbursement or funding to a
Mortgagor of previously unfunded, escrowed or otherwise reserved portions of the
loan proceeds of the applicable non-Specially Serviced Mortgage Loan until
certain conditions precedent thereto relating to the satisfaction of performance
related criteria (i.e., project reserve thresholds, lease-up requirements, sales
requirements, etc.), as set forth in the applicable Mortgage Loan documents have
been satisfied, the Master Servicer shall forward the Mortgagor's request to the
Special Servicer for processing (which request shall be deemed approved if the
request is not denied by the Special Servicer in writing to the Master Servicer
within ten (10) Business Days of the Special Servicer's receipt of such
request); provided, further, that if in the reasonable judgment of the Master
Servicer any request by a Mortgagor for consent of the Mortgagee or any
modification, waiver or amendment is not included within the scope of this
clause (i), the Special Servicer shall be responsible for such request in
accordance with clause (ii) below.
(ii) The Special Servicers shall be responsible for any request
by a Mortgagor for the consent of the mortgagee and any modification, waiver or
amendment of any term of any Mortgage Loan for which the Master Servicer is not
responsible, as provided above, or if such consent, request, modification,
waiver or amendment relates to a Specially Serviced Mortgage Loan or a Mortgage
Loan that is on the most recent CMSA Servicer Watch List with respect to a
Mortgage Loan other, has a Debt Service Coverage Ratio (based on the most
recently received financial statements and calculated on a trailing twelve month
basis) less than the greater of 1.1x or 20% less than the Debt Service Coverage
Ratio as of the Cut-off Date or with respect to which an event of default has
occurred in the preceding 12 months.
(b) All modifications, waivers or amendments of any Mortgage Loan
shall be (i) in writing (except for waivers of Penalty Charges; provided,
however, that any waivers of Penalty Charges shall be reflected in the Master
Servicer's or Special Servicer's servicing records for the relevant Mortgage
Loan) and (ii) effected in accordance with the Servicing Standard.
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(c) Neither the Master Servicer nor, except as provided in Section
8.18(d), the Special Servicer, on behalf of the Trustee, shall agree or consent
to any modification, waiver or amendment of any term of any non-Specially
Serviced Mortgage Loan if such modification, waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums and Yield
Maintenance Charges, but excluding any amounts payable as additional servicing
compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal Prepayment
during any period in which the related Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
in connection with a defeasance or pursuant to Section 9.12, result in a release
of the lien of the Mortgage on any material portion of the related Mortgaged
Property; or
(iv) in the judgment of the Master Servicer or Special Servicer,
as applicable, otherwise materially impair the security for such Mortgage Loan
or reduce the likelihood of timely payment of amounts due thereon;
unless either (x) the subject Mortgage Loan is in default or default is
reasonably foreseeable or (y) the Special Servicer has determined (and may rely
on an opinion of counsel in making the determination) that the modification,
waiver or amendment will not be a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury regulations section 1.860G-2(b).
Nothing contained in this Section 8.18(c) shall modify the scope of the
modifications, amendments, waivers and consents for Mortgage Loans for which the
Master Servicer and the Special Servicer, as applicable, are responsible under
Sections 8.18(a)(i) and (a)(ii).
(d) Notwithstanding anything herein to the contrary, with respect to
each Loan Pair, the Master Servicer shall be responsible for obtaining Rating
Agency Confirmation that a proposed action will not result in a downgrade,
qualification or withdrawal of any of the then-current ratings assigned to the
Certificates, but only to the extent such Rating Agency Confirmation is required
hereunder or under the terms of the relevant Mortgage Loan documents with
respect to any Mortgage Loan in such Loan Pair that is not a Specially Serviced
Mortgage Loan or REO Loan.
(e) Notwithstanding Sections 8.18(a)(i) and 8.18(c), but subject to
Sections 8.18(g) and 8.18(h), the Special Servicer may (i) reduce the amounts
owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce
the amount of the Monthly Payment on any Specially Serviced Mortgage Loan,
including by way of a reduction in the related Mortgage Rate, (iii) forbear in
the enforcement of any right granted under any Note or Mortgage relating to a
Specially Serviced Mortgage Loan, (iv) extend the maturity of any Specially
Serviced Mortgage Loan, (v) waive Excess Interest if such waiver conforms to the
Servicing Standard, (vi) permit the release or substitution of collateral for a
Specially Serviced Mortgage Loan and/or
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(vii) accept a Principal Prepayment during any lockout period; provided that (A)
the related Mortgagor is in default with respect to the Specially Serviced
Mortgage Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable and (B) in the sole good faith judgment of the Special
Servicer and in accordance with the Servicing Standard, such modification would
not reduce the recovery on the subject Mortgage Loan to Certificateholders (or,
in the case of a Loan Pair, Certificateholders and the holder of the related
Serviced Companion Mortgage Loan), as a collective whole, on a present value
basis (the relevant discounting of amounts that will be distributable to
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
to be performed at the related Mortgage Rate).
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the prior paragraph of this Section 8.18(e) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination and the considerations of the Special Servicer forming
the basis of such determination (which shall include but shall not be limited to
information, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Mortgage Loan or Mortgaged Property, the
cost of which Appraisal shall be advanced by the Master Servicer as a Servicing
Advance).
(f) The Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan that is not in default or as to which default is
not reasonably foreseeable if it consults with counsel (and if it is determined
by the Special Servicer to be necessary, provides the Trustee with an Opinion of
Counsel (at the expense of the related Mortgagor or such other Person requesting
such modification or, if such expense cannot be collected from the related
Mortgagor or such other Person, to be paid by the Servicer as a Servicing
Advance)) to obtain advice regarding whether the contemplated waiver,
modification or amendment (i) will not be a "significant modification" of the
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b),
(ii) will not cause (x) any REMIC Pool to fail to qualify as a REMIC for
purposes of the Code or (y) any REMIC Pool to be subject to any tax under the
REMIC Provisions.
(g) Notwithstanding anything in this Agreeemnt to the contrary,
neither the Master Servicer nor the Special Servicer shall consent to, make or
permit any modification, waiver or amendment of any term of any Mortgage Loan
that would cause an Adverse REMIC Event with respect to any REMIC Pool, an
Adverse Grantor Trust Event with respect to any of the Excess Interest Grantor
Trust, the Class A-4FL Grantor Trust or the Class A-MFL Grantor Trust or any
event similar to the foregoing with respect to any REMIC or grantor trust that
includes a B Note.
(h) In no event shall the Special Servicer (i) extend the Maturity
Date of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date; (ii) extend the Maturity Date of any Mortgage Loan at an
interest rate less than the lower of (A) the interest rate in effect prior to
such extension or (B) the then prevailing interest rate for comparable loans, as
determined by the Special Servicer by reference to available indices for
commercial mortgage lending; (iii) if the Mortgage Loan is secured by a ground
lease, extend the Maturity Date of such Mortgage Loan beyond a date which is 10
years prior to the expiration of
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the term of such Ground Lease (after giving effect to all extension options); or
(iv) defer interest due on any Mortgage Loan in excess of 5% of the Stated
Principal Balance of such Mortgage Loan; provided that with respect to clause
(iii) above, the Special Servicer gives due consideration to the term of such
Ground Lease prior to any extension beyond a date 20 years prior to the
expiration of the term of such Ground Lease (after giving effect to all
extension options).
(i) Neither the Master Servicer or the Special Servicer may agree to
any modification, waiver, amendment or consent of or relating to any term of a
cross-collateralized Mortgage Loan (including in connection with the transfer of
any Mortgaged Property) that would result in the uncrossing of any such Mortgage
Loan without obtaining a Nondisqualification Opinion or a ruling from the
Internal Revenue Service pursuant to Section 12.3.
(j) The Master Servicer and the Special Servicer may, as a condition
to granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Mortgagor pay to it (i) as additional servicing compensation, a
reasonable or customary fee for the additional services performed in connection
with such request (provided that such fee does not constitute or cause a
"significant modification" of such Mortgage Loan under Treasury regulations
section 1.860G-2(b)), and (ii) any related costs and expenses incurred by it. In
no event shall the Master Servicer or the Special Servicer be entitled to
payment for such fees or expenses unless such payment is collected from the
related Mortgagor.
(k) The Master Servicer and the Special Servicer shall, except with
respect to waivers of Penalty Charges, notify each other, the holder of each
affected B Note and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Mortgage Loan (including fees charged the
Mortgagor) agreed to by the Master Servicer or the Special Servicer, as the case
may be, and the date thereof, and shall deliver to the Trustee (in the case of
the Special Servicer, with a copy to the Master Servicer) for deposit in the
related Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. The Master Servicer or Special
Servicer, as applicable, shall notify the Rating Agencies of any modification,
waiver, except with respect to waivers of Penalty Charges, or amendment of any
term of any Significant Mortgage Loan agreed to by the Master Servicer or the
Special Servicer, as the case may be. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Mortgage Loan is effected
shall be made available for review upon prior request during normal business
hours at the offices of the Master Servicer or Special Servicer, as applicable,
pursuant to Section 8.15 or 9.7 hereof, as applicable.
With respect to each Mortgagor that has been established as a
"bankruptcy-remote entity," neither the Master Servicer nor the Special Servicer
shall consent to (x) the amendment by such Mortgagor of its organizational
documents in a manner that would violate any covenant of such Mortgagor relating
to its status as a separate of bankruptcy-remote entity or (y) any action that
would violate any covenant of such Mortgagor relating to its status as a
separate or bankruptcy-remote entity, unless granting such consent is consistent
with the Servicing Standard
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and, with respect to a Mortgagor under any Significant Mortgage Loan, the Master
Servicer or the Special Servicer, as applicable, has obtained Rating Agency
Confirmation that such amendment or action would not result in a downgrade or
withdrawal of any rating on a Class of Certificates rated by such Rating Agency.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The 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 Master Servicer may rely on Schedule X
attached hereto) and, except for the Rating Agencies, the Paying Agent 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 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 Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The 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 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) the 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 the 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 THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
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(i) the 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 Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) the 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. The 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 the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Paying Agent and the Special Servicer,
evidences the valid and binding obligation of the Master Servicer enforceable
against the 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
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the 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 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 the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
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(b) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the Master Servicer by any of the Trustee
or the Master Servicer. The Master Servicer shall give prompt notice to the
Trustee, the Depositor, any Primary Servicer 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 in this
Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Master Servicer
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor of the 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 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 such a transaction occurs and the
conditions to the provisions in the preceding sentence are not met, the Trustee
may terminate, and if such a transaction occurs and the conditions set forth in
the following paragraph are not met the Trustee shall terminate, the
successor's, survivor's or resulting entity'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.
Notwithstanding the foregoing, as long as (but only for so long as)
the Trust is subject to the reporting requirements of the Exchange Act, Master
Servicer may not remain the Master Servicer under this Agreement after (x) being
merged or consolidated with or into any Person that is a Prohibited Party, or
(y) transferring all or substantially all of its assets to any Person if such
Person is a Prohibited Party, unless (i) the Master Servicer is the surviving
entity of such merger, consolidation or transfer or (ii) the Depositor consents
to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld (and if, within 45 days following the date of delivery of
a notice by the Master Servicer to the Depositor of any merger or similar
transaction described in the prior paragraph, the Depositor shall have failed to
notify the Master Servicer of the Depositor's determination to grant or withhold
such consent, such failure shall be deemed to constitute a grant of such
consent).
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the 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 the 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 Master Servicer's
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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 the Master Servicer to the
Trustee. The Master Servicer shall bear all out-of-pocket fees and costs
associated with its resignation and the transfer of servicing under this Section
8.22(a). Notwithstanding the foregoing, if the Master Servicer shall cease to
serve as such in accordance with this Section 8.22(a) and a successor servicer
shall not have been engaged, the Trustee or an agent of the Trustee shall assume
the duties and obligations of the Master Servicer under this Agreement. If the
Trustee or an agent of the Trustee assumes the duties and obligations of the
Master Servicer pursuant to this Section 8.22(a), the Trustee or such agent
shall be permitted to resign as master servicer if it has been replaced by a
successor servicer satisfying the criteria in the fourth preceding sentence
above.
(b) The 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 (w) is available, (x) has a net worth of at least
$15,000,000, (y) is willing to assume the obligations, responsibilities, and
covenants to be performed hereunder by the Master Servicer on substantially the
same terms and conditions, and for not more than equivalent compensation to that
herein provided and (z) assumes all obligations under the applicable Primary
Servicing Agreement; (ii) the 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.
The 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 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 Master Servicer hereunder or (B) assign and delegate all of
its duties hereunder; provided, however, that with respect to clause (B), (i)
the Master Servicer gives the Depositor, the Special Servicer, any Primary
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 Master Servicer, with like effect as if
originally named as a party to this Agreement and the applicable Primary
Servicing Agreement; (iii) the purchaser or transferee has a net worth in excess
of $15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; and (v) the Depositor consents to such assignment and
delegation, such consent not be unreasonably withheld. In the case of any such
assignment and delegation in accordance with the requirements of subclause (B)
of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint a
Primary Servicer and Sub-Servicers in accordance with Section 8.4 hereof.
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SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.
(a) Neither the Master Servicer nor any of the partners,
representatives, Affiliates, members, managers, directors, officers, employees
or agents of the Master Servicer shall be under any liability to the holders of
the Certificates, the Depositor, the Trustee, 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 Master Servicer or any such person against any
breach of a representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties under the Agreement or by reason of
negligent disregard of obligations and duties hereunder. The Master Servicer and
any partner, representative, Affiliate, member, manager, director, officer,
employee or agent of the Master Servicer 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. The Master Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Mortgage Loans in accordance with this Agreement; provided
that the 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
the Master Servicer shall be entitled to be reimbursed therefor as Servicing
Advances as provided by Section 5.2, subject to the provisions of Section 4.4
hereof.
(b) In addition, the Master S