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XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
MIDLAND LOAN SERVICES, INC.,
as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ5
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................4
Section 1.2 Calculations Respecting Mortgage Loans.......................76
Section 1.3 Calculations Respecting Accrued Interest.....................77
Section 1.4 Interpretation...............................................77
Section 1.5 ARD Loans....................................................78
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage
Loans........................................................78
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................80
Section 2.2 Acceptance by Trustee........................................83
Section 2.3 Sellers's Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of Representations
and Warranties...............................................85
Section 2.4 Representations and Warranties...............................91
Section 2.5 Conveyance of Interests......................................92
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans......93
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................93
Section 3.2 Registration.................................................94
Section 3.3 Transfer and Exchange of Certificates........................95
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates...........101
Section 3.5 Persons Deemed Owners.......................................101
Section 3.6 Access to List of Certificateholders' Names and Addresses...101
Section 3.7 Book-Entry Certificates.....................................102
Section 3.8 Notices to Clearing Agency..................................105
Section 3.9 Definitive Certificates.....................................105
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.............................106
Section 4.2 Servicing Advances..........................................108
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Section 4.3 Advances by the Trustee.....................................109
Section 4.4 Evidence of Nonrecoverability...............................109
Section 4.5 Interest on Advances; Calculation of Outstanding Advances
with Respect to a Mortgage Loan.............................110
Section 4.6 Reimbursement of Advances and Advance Interest..............111
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.................................................113
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account....................................117
Section 5.3 Distribution Account and Reserve Account....................126
Section 5.4 Trustee Reports.............................................127
Section 5.5 Trustee Tax Reports.........................................129
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.....................................130
Section 6.1A 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC.....................131
Section 6.2 REMIC I.....................................................131
Section 6.3 REMIC II....................................................132
Section 6.4 Reserved....................................................138
Section 6.5 REMIC III and Excess Interest Grantor Trust.................138
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability.........................144
Section 6.7 Net Aggregate Prepayment Interest Shortfalls................147
Section 6.8 Adjustment of Servicing Fees................................147
Section 6.9 Appraisal Reductions........................................147
Section 6.10 Compliance with Withholding Requirements....................148
Section 6.11 Prepayment Premiums.........................................148
ARTICLE VII
CONCERNING THE TRUSTEE AND THE LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee.......................................149
Section 7.2 Certain Matters Affecting the Trustee.......................151
Section 7.3 The Trustee, Not Liable for Certificates or Interests or
Mortgage Loans..............................................152
Section 7.4 The Trustee, May Own Certificates...........................154
Section 7.5 Eligibility Requirements for the Trustee....................154
Section 7.6 Resignation and Removal of the Trustee......................154
Section 7.7 Successor Trustee...........................................155
Section 7.8 Merger or Consolidation of Trustee..........................156
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Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian...................................................156
Section 7.10 Authenticating Agents.......................................158
Section 7.11 Indemnification of Trustee..................................159
Section 7.12 Fees and Expenses of Trustee................................160
Section 7.13 Collection of Moneys........................................161
Section 7.14 Trustee To Act; Appointment of Successor....................161
Section 7.15 Notification to Holders.....................................163
Section 7.16 Representations and Warranties of the Trustee...............164
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee...................................164
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders..........................................165
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties........................166
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer...........................168
Section 8.3 Master Servicer's General Power and Duties..................168
Section 8.4 Primary Servicing and Sub-Servicing.........................175
Section 8.5 Servicers May Own Certificates..............................176
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and
Other.......................................................176
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause...................................179
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.....183
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of the
Certificateholders..........................................184
Section 8.10 Servicing Compensation......................................184
Section 8.11 Master Servicer Reports; Account Statements.................186
Section 8.12 Annual Statement as to Compliance...........................188
Section 8.13 Annual Independent Public Accountants' Servicing Report.....188
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the
Mortgaged Properties........................................189
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer.............................................190
Section 8.16 Rule 144A Information.......................................192
Section 8.17 Inspections.................................................193
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.193
Section 8.19 Specially Serviced Mortgage Loans...........................197
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer....................................................198
Section 8.21 Merger or Consolidation.....................................199
Section 8.22 Resignation of Master Servicer..............................199
Section 8.23 Assignment or Delegation of Duties by Master Servicer.......200
Section 8.24 Limitation on Liability of the Master Servicer and Others...201
Section 8.25 Indemnification; Third-Party Claims.........................203
Section 8.26 Exchange Act Reporting......................................205
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Section 8.27 Compliance with REMIC Provisions............................207
Section 8.28 Termination.................................................207
Section 8.29 Procedure Upon Termination..................................209
Section 8.30 Operating Adviser Contact with Master Servicer and Special
Servicer....................................................211
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED
MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer..................................212
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of
Special Servicer............................................213
Section 9.3 Sub-Servicers...............................................214
Section 9.4 Special Servicer General Powers and Duties..................214
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced Mortgage
Loans; Due-On-Encumbrance Clauses...........................217
Section 9.6 Release of Mortgage Files...................................222
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee.........................223
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer....................................................224
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies..........................................225
Section 9.10 Presentment of Claims and Collection of Proceeds............227
Section 9.11 Compensation to the Special Servicer........................227
Section 9.12 Realization Upon Defaulted Mortgage Loans...................229
Section 9.13 Foreclosure.................................................231
Section 9.14 Operation of REO Property...................................231
Section 9.15 Sale of REO Property........................................235
Section 9.16 Realization on Collateral Security..........................236
Section 9.17 Reserved....................................................236
Section 9.18 Annual Officer's Certificate as to Compliance...............236
Section 9.19 Annual Independent Accountants' Servicing Report............236
Section 9.20 Merger or Consolidation.....................................237
Section 9.21 Resignation of Special Servicer.............................237
Section 9.22 Assignment or Delegation of Duties by Special Servicer......238
Section 9.23 Limitation on Liability of the Special Servicer and Others..239
Section 9.24 Indemnification; Third-Party Claims.........................241
Section 9.25 Reserved....................................................242
Section 9.26 Special Servicer May Own Certificates.......................242
Section 9.27 Tax Reporting...............................................243
Section 9.28 Application of Funds Received...............................243
Section 9.29 Compliance with REMIC Provisions............................243
Section 9.30 Termination.................................................243
Section 9.31 Procedure Upon Termination..................................247
Section 9.32 Certain Special Servicer Reports............................249
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Section 9.33 Special Servicer to Cooperate with the Master Servicer and
Trustee.....................................................252
Section 9.34 Reserved....................................................253
Section 9.35 Reserved....................................................253
Section 9.36 Sale of Defaulted Mortgage Loans............................253
Section 9.37 Operating Adviser; Elections................................256
Section 9.38 Limitation on Liability of Operating Adviser................258
Section 9.39 Duties of Operating Adviser.................................258
Section 9.40 Rights of the Holder of a B Note............................260
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans..............................................261
Section 10.2 Procedure Upon Termination of Trust.........................264
Section 10.3 Additional Trust Termination Requirements...................265
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.............................266
Section 11.2 Access to List of Holders...................................267
Section 11.3 Acts of Holders of Certificates.............................267
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration........................................268
Section 12.2 Prohibited Transactions and Activities......................274
Section 12.3 Modifications of Mortgage Loans.............................274
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC
Status......................................................274
Section 12.5 Excess Interest Grantor Trust...............................275
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.................................275
Section 13.2 Entire Agreement............................................276
Section 13.3 Amendment...................................................276
Section 13.4 GOVERNING LAW...............................................278
Section 13.5 Notices.....................................................278
Section 13.6 Severability of Provisions..................................279
Section 13.7 Indulgences; No Waivers.....................................279
Section 13.8 Headings Not to Affect Interpretation.......................279
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Section 13.9 Benefits of Agreement.......................................279
Section 13.10 Special Notices to the Rating Agencies......................280
Section 13.11 Counterparts................................................281
Section 13.12 Intention of Parties........................................281
Section 13.13 Recordation of Agreement....................................283
Section 13.14 Rating Agency Monitoring Fees...............................283
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-AB Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-J Certificate
EXHIBIT A-7 Form of Class B Certificate
EXHIBIT A-8 Form of Class C Certificate
EXHIBIT A-9 Form of Class D Certificate
EXHIBIT A-10 Form of Class E Certificate
EXHIBIT A-11 Form of Class F Certificate
EXHIBIT A-12 Form of Class G Certificate
EXHIBIT A-13 Form of Class H Certificate
EXHIBIT A-14 Form of Class J Certificate
EXHIBIT A-15 Form of Class K Certificate
EXHIBIT A-16 Form of Class L Certificate
EXHIBIT A-17 Form of Class M Certificate
EXHIBIT A-18 Form of Class N Certificate
EXHIBIT A-19 Form of Class O Certificate
EXHIBIT A-20 Form of Class P Certificate
EXHIBIT A-21 Form of Class Q Certificate
EXHIBIT A-22 Form of Class S Certificate
EXHIBIT A-23 Form of Class R-I Certificate
EXHIBIT A-24 Form of Class R-II Certificate
EXHIBIT A-25 Form of Class R-III Certificate
EXHIBIT A-26 Form of Class R-EA 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))
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EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Reserved
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate (Section
3.7(d)
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement (MSMC)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement (CWCapital)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special
Servicer (Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA Form of Midland Loan Services, Inc. primary servicing agreement
(Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD Form of Notice with respect to each Non-Serviced mortgage Loan
SCHEDULE I MSMC Loan Schedule
SCHEDULE II CWCapital Loan Schedule
SCHEDULE III Reserved
SCHEDULE IV Reserved
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SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g)
is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX -
SCHEDULE XVI Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE XVII Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XVIII List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
SCHEDULE XIX Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XX Class A-AB Planned Principal Balance
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THIS POOLING AND SERVICING AGREEMENT is dated as of March 1, 2005
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), MIDLAND LOAN SERVICES, INC., as
master servicer (the "Master Servicer"), GMAC COMMERCIAL MORTGAGE CORPORATION,
as special servicer (the "Special Servicer") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as trustee of the Trust (the "Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), and CWCapital
Mortgage Securities II LLC, as seller ("CWCapital II"), 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 Majority
Mortgage Loans (other than the right to receive Excess Interest) (and the
related Majority Mortgage Loan documents) and the 000 Xxxxxx Xxxxxx Pari Passu
Loan REMIC Regular Interest (and the related 000 Xxxxxx Xxxxxx Pari Passu Loan
documents); (ii) the REMIC II Regular Interests and the Class R-II Certificates
as consideration for its transfer of the REMIC I Regular Interests to the Trust;
and (iii) the REMIC III Certificates as consideration for its transfer of the
REMIC II Regular Interests to the Trust; and (iv) the Class S Certificates as
consideration for its transfer to the Trust of the right to receive any Excess
Interest (such right, and any amounts on deposit from time to time in the Excess
Interest Sub-account (as hereinafter defined), the "Excess Interest Grantor
Trust"). The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC III Certificates representing in
the aggregate the entire beneficial ownership of REMIC III and, (D) the Class S
Certificates representing in the aggregate the entire beneficial interest in the
Excess Interest Grantor Trust. All covenants and agreements made by the
Depositor and the Trustee herein with respect to the Mortgage Loans and the
other property constituting the Trust are for the benefit of the Holders of the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, the REMIC I Regular
Interests, the REMIC II Regular Interests, the REMIC Regular Certificates, the
Residual Certificates and the Class S Certificates. The Class R-EA Certificates
represent ownership of the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Residual
Interest. The parties hereto are entering into this Agreement, and the Trustee
is accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-J, Class X-2 Class B, Class C, Class D and
Class E Certificates will be offered for sale pursuant to the prospectus (the
"Prospectus") dated February 7, 2005 as supplemented by the preliminary
prospectus supplement dated March 10, 2005 (together with the Prospectus, the
"Preliminary Prospectus Supplement"), and as further supplemented by the final
prospectus supplement dated March 21, 2005 (together with the Prospectus, the
"Final Prospectus Supplement"), and the Class X-1, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates will be offered for sale pursuant to a Private Placement
Memorandum dated March 21, 2005.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC
Regular Interest and the Class R-EA Certificates comprising the interests in the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC, each Class of REMIC I Regular Interests
and the Class R-I Certificates comprising the interests in REMIC I, each Class
of REMIC II Regular Interests and the Class R-II Certificates comprising the
interests in REMIC II, each Class of REMIC III Certificates comprising the
interests in REMIC III and the Class S Certificates representing pro rata
undivided beneficial interests in the Excess Interest Grantor Trust (each of
REMIC I, REMIC II, REMIC III and the Excess Interest Grantor Trust being created
hereunder):
000 XXXXXX XXXXXX PARI PASSU LOAN REMIC
The 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest relates
to the 000 Xxxxxx Xxxxxx Pari Passu Loan. The 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC Regular Interest has been issued pursuant to the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Declaration dated March 1, 2005, has a pass-through rate equal
to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Net Mortgage Rate (it being
understood that the Master Servicing Fee and the Trustee Fee shall have been
paid to the party entitled thereto by the 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC), an initial Certificate Balance equal to the Scheduled Principal Balance
as of the Cut-Off Date of the 000 Xxxxxx Xxxxxx Pari Passu Loan, and a "latest
possible maturity date" of April 1, 2014. The 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC Regular Interest will be held as an asset of REMIC I. The 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Residual Interest is represented by the Class R-EA
Certificate, has been designated as the sole Class of residual interests in the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC and has no Certificate Balance and no
Pass-Through Rate, but is entitled to receive the proceeds of any assets
remaining in the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC after the 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Regular Interest has been paid in full.
REMIC I
As provided herein, with respect to the Trust, 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 Majority Mortgage Loans and the 000
Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest) to be treated for federal
income tax purposes as a real estate mortgage investment conduit ("REMIC I").
The REMIC I Regular Interests will be designated as the "regular interests" in
REMIC I.
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial 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; provided that in the case of the
000 Xxxxxx Xxxxxx Pari Passu Loan, the Corresponding REMIC I Regular Interest
has a pass-through rate equal to the REMIC I Net Mortgage Rate of the 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Regular Interest, an initial Certificate Balance
equal to the initial Certificate Balance of the 111
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Eighth Avenue Pari Passu Loan REMIC Regular Interest, and a "latest possible
maturity date" of April 1, 2014. The Class R-I Certificate will be designated as
the sole Class of residual interests in REMIC I and will have no Certificate
Balance and no Pass-Through Rate, but will be entitled to receive the proceeds
of any assets remaining in REMIC I after all Classes of REMIC I Regular
Interests have been paid in full.
REMIC II
As provided herein, with respect to the Trust, the Trustee will make
an election for the segregated pool of assets described in the second paragraph
of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC II"). The REMIC II Regular Interests will be designated as the
"regular interests" in REMIC II.
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
REMIC III
As provided herein, with respect to the Trust the Trustee will make an
election for the segregated pool of assets described in the third paragraph of
Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be
treated for federal income tax purposes as a real estate mortgage investment
conduit ("REMIC III"). The REMIC III Regular Interests will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
Initial Aggregate
REMIC III Initial Pass- Certificate Principal
Interest Through Balance or Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
----------- ------------- ---------------------- --------------------
Class A-1 4.517% $ 121,000,000.00 November 14, 2009
Class A-2 4.809% $ 160,900,000.00 March 14, 2010
Class A-3 5.007% $ 159,400,000.00 March 14, 2012
Class A-AB 5.037% $ 66,400,000.00 March 14, 2014
Class A-4 5.168% $ 711,252,000.00 January 14, 2015
Class A-J 5.242% $ 112,372,000.00 January 14, 2015
Class X-1 0.047% $1,533,690,515.20 March 14, 2020
Class X-2 0.544% $1,486,416,000.00 March 14, 2013
Class B 5.272% $ 30,474,000.00 January 14, 2015
Class C 5.302% $ 19,046,000.00 February 14, 2015
Class D 5.336% $ 15,237,000.00 March 14, 2015
Class E 5.378% $ 17,141,000.00 March 14, 2015
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Initial Aggregate
REMIC III Initial Pass- Certificate Principal
Interest Through Balance or Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
-------------- ------------- --------------------- --------------------
Class F 5.602% $15,237,000.00 March 14, 2015
Class G 5.662% $15,237,000.00 March 14, 2015
Class H 5.662% $13,333,000.00 March 14, 2015
Class J 5.662% $20,950,000.00 March 14, 2015
Class K 5.013% $ 5,714,000.00 March 14, 2015
Class L 5.013% $ 5,714,000.00 March 14, 2015
Class M 5.013% $ 5,714,000.00 April 14, 2015
Class N 5.013% $ 3,809,000.00 April 14, 2015
Class O 5.013% $ 1,905,000.00 April 14, 2015
Class P 5.013% $ 3,809,000.00 April 14, 2020
Class Q 5.013% $19,046,515.20 March 14, 2015
Class R-III(c) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of REMIC III Certificates (other than the
Residual Certificates) will be determined as described herein under the
definition of "Pass-Through Rate." The initial Pass-Through Rates shown
above are approximate for the Class F, Class G, Class H, Class J, Class X-1
and Class X-2 Certificates.
(b) The Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date on which such Class is expected to be paid in full,
assuming that timely payments (and no prepayments) will be made on the
Mortgage Loans in accordance with their terms (except that each ARD Loan
will be prepaid in full on its Anticipated Repayment Date). Each ARD Loan
is assumed to repay in full on its Anticipated Repayment Date.
(c) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $1,523,690,515.
EXCESS INTEREST GRANTOR TRUST
The parties intend that the portion of the Trust consisting of Excess
Interest and the Excess Interest Sub-account (such portion of the Trust, the
"Excess Interest Grantor Trust") will be treated as a grantor trust under
Subpart E of Part 1 of Subchapter J of the Code and the Class S Certificates
represent pro rata undivided beneficial interests in the Excess Interest Grantor
Trust. The Class S Certificates will have no Certificate Balance and no
Pass-Through Rate.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
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"111 EIGHTH AVENUE B NOTES" means, with respect to the 000 Xxxxxx
Xxxxxx Pari Passu Loan, the 000 Xxxxxx Xxxxxx X Notes, which are comprised of
two subordinated mortgage notes that are not included in the trust and are not
serviced under the Pooling and Servicing Agreement.
"111 EIGHTH AVENUE COMPANION LOAN" means the loans secured by the 000
Xxxxxx Xxxxxx Pari Passu Mortgage on a pari passu basis with the 000 Xxxxxx
Xxxxxx Pari Passu Loan.
"111 EIGHTH AVENUE LOAN GROUP" means, collectively, the 000 Xxxxxx
Xxxxxx Pari Passu Loan, the 000 Xxxxxx Xxxxxx Companion Loans and the 000 Xxxxxx
Xxxxxx X Notes.
"111 EIGHTH AVENUE PARI PASSU LOAN" means Mortgage Loan No. 15, which
is secured on a pari passu basis with the 000 Xxxxxx Xxxxxx Companion Loans
pursuant to the 000 Xxxxxx Xxxxxx Pari Passu Mortgage.
"111 EIGHTH AVENUE PARI PASSU LOAN REMIC" means the segregated pool of
assets consisting of the 000 Xxxxxx Xxxxxx Pari Passu Loan and all proceeds
thereof for which a REMIC declaration has been made.
"111 EIGHTH AVENUE PARI PASSU LOAN REMIC DECLARATION" means the REMIC
Declaration dated as of March 1, 2005 by Xxxxxx Xxxxxxx Capital Inc. pursuant to
which the 000 Xxxxxx Xxxxxx pari Passu Loan REMIC Regular Interest and the 000
Xxxxxx Xxxxxx Pari Passu loan REMIC Residual Interest have been issued.
"111 EIGHTH AVENUE PARI PASSU LOAN REMIC INTERESTS" mean collectively,
the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest and the 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Residual Interest.
"111 EIGHTH AVENUE PARI PASSU LOAN REMIC NET MORTGAGE RATE" means,
with respect to any Distribution Date, as to the 000 Xxxxxx Xxxxxx Pari Passu
Loan REMIC Regular Interest, a rate per annum equal to the annualized rate that,
when applied to the Principal Balance of the 000 Xxxxxx Xxxxxx Pari Passu 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 (a) the Mortgage Rate of the 000 Xxxxxx Xxxxxx Pari Passu
Loan (without taking into account 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 (b) the Administrative Cost Rate, and
assuming an interest accrual basis that is the same as the actual interest
accrual basis of the 000 Xxxxxx Xxxxxx Pari Passu Loan, provided that (i) the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Net Mortgage Rate for the loan accrual
period relating to the Due Dates in both January and February in any year that
is not a leap year and in February in any year that is a leap year, shall be
determined net of any amounts transferred to the Interest Reserve Account
relating to such Mortgage Loan and (ii) the 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC Net Mortgage Rate for the loan accrual period relating to the Due Date in
March in any year shall be determined taking into account the addition of any
amounts withdrawn from the Interest Reserve Account.
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"111 EIGHTH AVENUE PARI PASSU LOAN REMIC REGULAR INTEREST" means, the
uncertificated interest designated as the "regular interest" in the 000 Xxxxxx
Xxxxxx Xxxxx Loan REMIC, which shall consist of, an interest having an initial
Certificate Balance equal to the Cut-Off Date Scheduled Principal Balance of the
000 Xxxxxx Xxxxxx Pari Passu Loan (or, if applicable, the deemed Scheduled
Principal Balance of any successor REO Loan), and which has a Pass-Through Rate
equal to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Net Mortgage Rate. Payments
and other collections of amounts received on or in respect to the 000 Xxxxxx
Xxxxxx Pari Passu Loan (or any related REO Property) shall be deemed
distributable on the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest.
"111 EIGHTH AVENUE PARI PASSU LOAN REMIC RESIDUAL INTEREST" means the
sole class of "residual interest," within the meaning of Code Section
860G(a)(2), in the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC. The 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Residual Interest is represented by the Class R-EA
Certificates.
"111 EIGHTH AVENUE PARI PASSU MORTGAGE" means the mortgage securing
the 000 Xxxxxx Xxxxxx Companion Loans, the 000 Xxxxxx Xxxxxx Pari Passu Loan and
the 000 Xxxxxx Xxxxxx X Notes.
"1370 AVENUE OF THE AMERICAS COMPANION LOAN" means, the note secured
by the 1370 Avenue of the Americas Pari Passu Mortgage on a pari passu basis
with the 1370 Avenue of the Americas Pari Passu Loan and which is not included
in the Trust. The 1370 Avenue of the Americas Companion Loan is not a "Mortgage
Loan."
"1370 AVENUE OF THE AMERICAS PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan No. 13 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the 1370 Avenue of the Americas Companion
Loan secured by the related Mortgaged Property pursuant to the 1370 Avenue of
the Americas Pari Passu Mortgage. The 1370 Avenue of the Americas Pari Passu
Loan is a "Mortgage Loan."
"1370 AVENUE OF THE AMERICAS PARI PASSU MORTGAGE" means, the Mortgage
securing the 1370 Avenue of the Americas Companion Loan and the 1370 Avenue of
the Americas Pari Passu Loan and any other note secured by the related Mortgaged
Property.
"75 BROAD A/B MORTGAGE LOAN" means the 75 Broad Mortgage Loan and the
75 Broad B Note.
"75 BROAD B NOTE" means, with respect to the 75 Broad A/B Mortgage
Loan, the related subordinated Mortgage Note not included in the Trust, which is
subordinated in right of payment to the 75 Broad Mortgage Loan to the extent set
forth in the related Intercreditor Agreement.
"75 BROAD MORTGAGE" means the Mortgage securing the 75 Broad A/B
Mortgage Loan.
"75 BROAD MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 12 on the Mortgage Loan Schedule and which is senior to the 75
Broad B Note and is secured by the related Mortgaged Property pursuant to the 75
Broad Mortgage. The 75 Broad Mortgage Loan is a "Mortgage Loan."
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"A NOTE" means, with respect to any A/B Mortgage Loan, the mortgage
note(s) that is senior in right of payment to the related B Note to the extent
set forth in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of 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 75 Broad A/B Mortgage Loan, the Richmond
Square A/B Mortgage Loan or any other mortgage loan serviced under this
Agreement that is divided into senior mortgage note(s) and a subordinated
mortgage note, which senior mortgage note(s) is included in the Trust.
References herein to an A/B Mortgage Loan shall be construed to refer to the
aggregate indebtedness under the related A Note and the related B Note.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, other than
the Residual Certificates, interest accrued during the Interest Accrual Period
relating to such Distribution Date on the Aggregate Certificate Balance of such
Class or Interest as of the close of business on the immediately preceding
Distribution Date at the respective rates per annum set forth in the definition
of the applicable Pass-Through Rate for each such Class. Accrued Certificate
Interest on the Class X-1 Certificates for each Distribution Date will equal the
Class X-1 Interest Amount. Accrued Certificate Interest on the Class X-2
Certificates for each Distribution Date will equal the Class X-2 Interest
Amount.
"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).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master
Servicer, any applicable Non-Serviced Mortgage Loan Special Servicer, the
Trustee (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
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Servicer (or Special Servicer, in the case of a Specially Serviced Mortgage
Loan) will not recover, from the related Mortgagor or Mortgaged Property or
otherwise, including a Modification Loss described in clause (ii) of the
definition thereof; provided, however, that, in the case of an A/B Mortgage
Loan, "Additional Trust Expense" shall not include any of the foregoing amounts
that have been recovered from the related Mortgagor or Mortgaged Property as a
result of the subordination of the related B Note. Notwithstanding anything to
the contrary, "Additional Trust Expenses" shall not include allocable overhead
of the Master Servicer, the Special Servicer, any Non-Serviced Mortgage Loan
Master Servicer, any Non-Serviced Mortgage Loan Special Servicer, the Trustee 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. No Additional Trust Expense consisting of
any taxes payable by any REMIC Pool in respect of the Mortgage Loans or out of
pocket expenses incurred by the Trust that are solely allocable to any Mortgage
Loans and that result from the inclusion of any Mortgage Loans in a REMIC Pool
shall be allocated to the 75 Broad B Note.
"ADMINISTRATIVE COST RATE" means, with respect to each Mortgage Loan,
the sum of the Master Servicing Fee Rate, the Excess Servicing Fee Rate, the
Trustee Fee Rate and in the case of any Non-Serviced Mortgage Loan, the related
Pari Passu Loan Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"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 or any Non-Serviced Mortgage Loan
Trustee with respect to Pari Passu Loan Nonrecoverable Advances pursuant to
Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the Code,
if taken or not taken, as the case may be, would either (i) endanger the status
of the Excess Interest Grantor Trust as a grantor trust or (ii) result in the
imposition of a tax upon the income the Excess Interest Grantor Trust or any of
its assets or transactions.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the
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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 000 Xxxxxx Xxxxxx Pari Passu
Loan REMIC Regular Interest, the REMIC I Regular Interests or the REMIC II
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, REMIC I Regular Interests
or REMIC II Regular Interests, Aggregate Certificate Balance shall mean the
aggregate of the Certificate Balances of all Certificates or Interests, as the
case may be, of that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD Loans, the
anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, B Note or
Loan Pair, not later than the earliest of (i) the date 120 days after the
occurrence of any delinquency in payment with respect to such Mortgage Loan, A/B
Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii) the date 30
days after receipt of notice that the related Mortgagor has filed a bankruptcy
petition or the related Mortgagor has become the subject of involuntary
bankruptcy proceedings or the related Mortgagor has consented to the filing of a
bankruptcy proceeding against it or a receiver is appointed in respect of the
related Mortgaged Property, provided such petition or appointment is still in
effect, (iii) the date that is 30 days following the date the related Mortgaged
Property becomes an REO Property and (iv) the effective date of any modification
to a Money Term of a Mortgage Loan, A/B Mortgage Loan or Loan Pair, other than
an extension of the date that a Balloon Payment is due for a period of less than
six months from the original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan, A/B Mortgage Loan or Loan Pair (or, in
the case of an REO Property, the related REO Mortgage Loan) less the principal
amount of any guaranty or surety bond with a rating of at least "BBB-" (or its
equivalent) by a nationally
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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, A/B Mortgage Loan or Loan Pair at a per
annum rate equal to the Mortgage Rate, (iii) all unreimbursed Advances
(including Unliquidated Advances) and interest on Advances (other than
Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan or
Loan Pair, and (iv) to the extent funds on deposit in any applicable Escrow
Accounts are not sufficient therefor, and to the extent not previously advanced
by the 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 and subject to any downward adjustments
that the Special Servicer may make (without implying any obligation to do so)
based upon its review of the Appraisal or such other information that it deems
appropriate) of such Mortgaged Property or REO Property as determined by such
Appraisal or internal valuation, as the case may be, plus the full amount of any
escrows held by or on behalf of the Trustee as security for the Mortgage Loan,
A/B Mortgage Loan or a Loan Pair (less the estimated amount of the obligations
anticipated to be payable in the next twelve months to which such escrows
relate). Each Appraisal or internal valuation for a Required Appraisal Loan
shall be updated annually for so long as an Appraisal Reduction exists. The
Appraisal Reduction for each Required Appraisal Loan will be recalculated based
on subsequent Appraisals, internal valuations or updates. Any Appraisal
Reduction for any Mortgage Loan, A/B Mortgage Loan or Loan Pair shall be reduced
to reflect any Realized Principal Losses on the Required Appraisal Loan or Loan
Pair. Each Appraisal Reduction will be reduced to zero as of the date the
related Mortgage Loan, A/B Mortgage Loan or Loan Pair is brought current under
the then current terms of the Mortgage Loan, A/B Mortgage Loan or Loan Pair for
at least three consecutive months, and no Appraisal Reduction will exist as to
any Mortgage Loan, A/B Mortgage Loan or Loan Pair after it has been paid in
full, liquidated, repurchased or otherwise disposed of. Any Appraisal Reduction
in respect of any Non-Serviced Mortgage Loan shall be calculated in accordance
with the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement
based upon the applicable allocation thereunder of the items set forth in
clauses (A) and (B) above between the Non-Serviced Mortgage Loans and the
related Non-Serviced Companion Mortgage Loans and all other related pari passu
loans. Any Appraisal Reduction in respect of any Loan Pair shall be allocated,
as between a Serviced Pari Passu Mortgage Loan and the related Serviced
Companion Mortgage Loan, pro rata according to their respective Principal
Balances. Any Appraisal Reduction with respect to an A/B Mortgage Loan shall be
calculated in respect of such A/B Mortgage Loan taken as a whole and any such
Appraisal Reduction shall be allocated first to the related B Note, up to the
Principal Balance thereof, and any excess shall be allocated to the related A
Note. For purposes of P&I Advances and reporting in connection with any
Distribution Date, the Master Servicer shall not be required to take account of
any downward adjustment(s) made by the Special Servicer as contemplated by
clause (B) above if the Master Servicer has not received notice of such downward
adjustment(s) before the end of the Collection Period related to such
Distribution Date.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan),
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan
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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 Mortgage Loan or B Note has not been paid in
full, and no Final Recovery Determination or other sale or liquidation has
occurred in respect thereof, on or before the end of the Collection Period in
which such Maturity Date occurs) and for any subsequent Due Date therefor as of
which such Mortgage Loan or such B Note remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
or such B Note on such Due Date, if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule in effect immediately prior to, and without regard to
the occurrence of, its most recent Maturity Date (as such may have been extended
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan or such B
Note granted or agreed to by the 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
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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 (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, the Special Servicer in
respect of unpaid Special Servicer Compensation, the Trustee in respect of
unpaid Trustee Fees or to the parties entitled thereto in respect of the unpaid
Excess Servicing Fees), (iii) amounts that constitute Prepayment Premiums, (iv)
if such Distribution Date occurs during January, other than in a leap year, or
February of any year, the Interest Reserve Amounts with respect to Interest
Reserve Loans deposited in the Interest Reserve Account, (v) in the case of each
REO Property related to an A/B Mortgage Loan or Loan Pair, all amounts received
with respect to such A/B Mortgage Loan or Loan Pair that are required to be paid
to the holder of the related B Note or Serviced Companion Mortgage Loan, as
applicable, pursuant to the terms of the related B Note or Serviced Companion
Mortgage Loan, as applicable, and the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement (which amounts will be deposited into the related
A/B Loan Custodial Account or Serviced Companion Mortgage Loan Custodial
Account, as applicable, pursuant to Section 5.1(c) and withdrawn from such
accounts pursuant to Section 5.2(a)) and (vi) Scheduled Payments collected but
due on a Due Date subsequent to the related Collection Period and (b) if and to
the extent not already among the amounts described in clause (a), (i) the
aggregate amount of any P&I Advances made by the 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 2006, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a
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remaining principal balance equal to or greater than 5% of its original
principal balance as of its stated maturity date, unless prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium with respect to the Principal Prepayment
(or the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to that Principal Prepayment (or the current Discount Rate
if not used in such calculation), provided, however, that under no circumstances
will the Base Interest Fraction be greater than one. If the Discount Rate
referred to above is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Trustee and the Master Servicer to the effect that any proposed transfer will
not (i) cause the assets of the Trust to be regarded as plan assets for purposes
of the Plan Asset Regulations or (ii) give rise to any fiduciary duty on the
part of the Depositor, the Master Servicer, the Special Servicer, the Trustee or
the Certificate Registrar.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, San Francisco, California or the
principal cities in which the Special Servicer, the Trustee, 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, San Francisco, California or Pittsburgh,
Pennsylvania 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,
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based on the written reports with respect to such Cash Liquidation delivered by
the Special Servicer to the Master Servicer), of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the Master Servicer (or any Sub-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 S Certificates, the Class X Certificates and the Residual
Certificates) or Interest as of any Distribution Date, the maximum specified
dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the initial principal amount set forth on
the face of such Certificate (in the case of a Certificate), or as ascribed
thereto herein (in the case of an Interest), minus (A)(i) the amount of all
principal distributions previously made with respect to such Certificate
pursuant to Section 6.5(a) or deemed to have been made with respect to such
Interest pursuant to Section 6.2(a) or Section 6.3(a), as the case may be, (ii)
all Realized Losses allocated or deemed to have been allocated to such Interest
or Certificate in reduction of Certificate Balance pursuant to Section 6.6, and
plus (B) an amount equal to the amounts identified in clause (I)(C) of the
definition of Principal Distribution Amount with respect to such Distribution
Date, such increases to be allocated to the Principal Balance Certificates or
Interests in sequential order (i.e. to the most senior Class first), in each
case up to the amount of Realized Losses previously allocated thereto and not
otherwise reimbursed hereunder. The Certificate Balance of each Component shall
equal the Certificate Balance of the Corresponding REMIC II Regular Interest.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Trustee.
"CERTIFICATEHOLDERS" has the meaning set forth in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class S Certificates, the Class R-I Certificates, the Class R-II Certificates
and the Class R-EA Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section 8.26(b).
"CERTIFYING PERSON" has the meaning set forth in Section 8.26(b).
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"CLASS" means, with respect to the 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC Regular Interest, REMIC I Interests, REMIC II Interests, REMIC III
Certificates, or Components, any Class of such Certificates, Interests or
Components.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-AB CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS A-J
CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O
CERTIFICATES," "CLASS P CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS S
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES", "CLASS R-III
CERTIFICATES," or "CLASS R-EA CERTIFICATES," mean the Certificates designated as
"Class A-1," "Class A-2," "Class X-0," "Xxxxx X-XX," "Class X-0," "Xxxxx X-X,"
"Class X-1," "Class X-2," "Class B," "Class C," "Class D," "Class E," "Class F,"
"Class G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N,"
"Class O," "Class P," "Class Q," "Class S," "Class R-I," "Class R-II", "Class
R-III" and "Class R-EA" respectively, on the face thereof, in substantially the
form attached hereto as Exhibits.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB Certificates,
and the Class A-4 Certificates collectively.
"CLASS A-1A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1A.
"CLASS A-1B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1B.
"CLASS A-1C COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-1 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-1C.
"CLASS A-2A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
"CLASS A-2C COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2C.
-15-
"CLASS A-3A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-3 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-3A.
"CLASS A-3B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-3 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-3B.
"CLASS A-ABA COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-AB Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-ABA.
"CLASS A-ABB COMPONENT" means a component of the beneficial interest
in REMIC III evidenced by the Class A-AB Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-ABB.
"CLASS A-4A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-4 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-4A.
"CLASS A-4B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-4 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-4B.
"CLASS A-4C COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-4 Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-4C.
"CLASS B-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest B-1.
"CLASS B-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class B Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest B-2.
"CLASS C-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class C Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest C-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
Certificate Balance 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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest D-1.
-16-
CLASS D-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class D Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest D-2.
"CLASS E-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-1.
"CLASS E-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class E Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest E-2.
"CLASS G-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class G Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest G-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
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest G-2.
"CLASS J-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-1.
"CLASS J-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class J Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest J-2.
"CLASS M-1 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest M-1.
"CLASS M-2 COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class M Certificates, which component represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest M-2.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-1 Strip Rates for the Class X-1 Interest Components, weighted on the basis of
their respective Certificate Balances immediately prior to such Distribution
Date and (ii) the Class X-1 Notional Amount for such Distribution Date.
"CLASS X-1 INTEREST COMPONENTS" means the Class A-1A Component, Class
A-1B Component, Class A-1C Component, Class A-2A Component, Class A-2B
Component, Class A-2C Component, Class A-3A Component, Class A-3B Component,
Class A-ABA Component, Class A-ABB Component, Class A-4A Component, Class A-4B
Component, Class A-4C
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Component, Class A-J Certificates, Class B-1 Component, Class B-2 Component,
Class C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2
Component, Class E-1 Component, Class E-2 Component, Class F Certificates, Class
G-1 Component, Class G-2 Component, Class H Certificates, Class J-1 Component,
Class J-2 Component, Class K Certificates, Class L Certificates and Class M-1
Component, Class M-2 Component and Class N Certificates, Class O Certificates,
Class P Certificates and Class Q Certificates.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates as of the close of business on the preceding Distribution Date.
"CLASS X-1 STRIP RATE" means, with respect to any Distribution Date
and any Class of Class X-1 Interest Components, the excess, if any, of (i) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, over (ii)
(x) in the case of any Class of Class X-1 Interest Components that is not a
Class X-2 Interest Component on such Distribution Date, the Pass-Through Rate
for such Class, and (y) in the case of any Class of Class X-2 Interest
Components for such Distribution Date, the greater of (1) the rate per annum
corresponding to such Distribution Date as set forth in the Rate Schedule for
such Distribution Date. In no event will any Class X-1 Strip Rate be less than
zero.
"CLASS X-2 INTEREST AMOUNT" means,
(A) with respect to any Distribution Date occurring on or before March
2013, and its related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-2 Strip Rates for each Class of Class X-2 Interest Components for such
Distribution Date, weighted on the basis of the respective Certificate Balance
of each such Class immediately prior to such Distribution Date and (ii) the
Class X-2 Notional Amount for such Distribution Date; and
(B) with respect to any Distribution Date occurring after March 2013,
zero.
"CLASS X-2 INTEREST COMPONENT" means, with respect to each
Distribution Date listed below and its related Interest Accrual Period, the
Classes of Components Certificates designated below:
--------------------------------------------------------------------------------
Distribution Date Classes
--------------------------------------------------------------------------------
Any Distribution Date Class A-1B Component, Class A-1C Component,
occurring through and Class A-2A Component, Class A-2B Component,
including the Distribution Class A-2C Component, Class A-3A Component,
Date March 2006 Class A-3B Component, Class A-ABA Component,
Class A-ABB Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component,
Class A-J Certificates, Class B-1 Component,
Class B-2 Component, Class C-1 Component, Class
C-2 Component, Class D-1 Component, Class D-2
Component, Class E-1 Component, Class E-2
Component, Class F Certificates, Class G-1
Component, Class G-2 Component, Class H
Certificates, Class J-1 Component, Class J-2
Component, Class K Certificates,
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
Distribution Date Classes
--------------------------------------------------------------------------------
Class L Certificates, Class M-1 Component and
Class M-2 Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-1C Component, Class A-2A Component,
occurring after March 2006 and Class A-2B Component, Class A-2C Component,
through and including the Class A-3A Component, Class A-3B Component,
Distribution Date in March Class A-ABA Component, Class A-ABB Component,
2007 Class A-4A Component, Class A-4B Component,
Class A-4C Component, Class A-J Certificates,
Class B-1 Component, Class B-2 Component, Class
C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E-1
Component, Class E-2 Component, Class F
Certificates, Class G-1 Component, Class G-2
Component, Class H Certificates, Class J-1
Component, Class J-2 Component, Class K
Certificates, Class L Certificates, Class M-2
Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-2B Component, Class A-2C Component,
occurring after March 2007 and Class A-3A Component, Class A-3B Component,
through and including the Class A-ABA Component, Class A-AAB Component,
Distribution Date in March Class A-4A Component, Class A-4B Component,
2008 Class A-4C Component, Class A-J Certificates,
Class B-1 Component, Class B-2 Component, Class
C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E-1
Component, Class E-2 Component, Class F
Certificates, Class G-1 Component, Class G-2
Component, Class H Certificates and Class J-2
Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-2C Component, Class A3A Component,
occurring after March 2008 and Class A-3B Component, Class A-ABA Component,
through and including the Class A-ABB Component, Class A-4A Component,
Distribution Date in March Class X-0X Xxxxxxxxx, Xxxxx X-0X Xxxxxxxxx,
0000 Class A-J Certificates, Class B-1 Component,
Class B-2 Component, Class C-1 Component, Class
C-2 Component, Class D-1 Component, Class D-2
Component,Class E-1 Component, Class E-2
Component, Class F Certificates and Class G-2
Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-3B Component, Class A-ABA Component,
occurring after March 2009 and Class A-ABB Component, Class A-4A Component,
through and including the Class A-4B Component, Class A-4C Component,
Distribution Date in March Class A-J Certificates, Class B-1 Component,
2010 Class B-2 Component, Class C-1 Component, Class
C-2 Component, Class D-1 Component, Class D-2
Component and Class E-2 Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-ABB Component, Class A-4A Component,
occurring after March 2010 and ClassA-4B Component, Class A-4C Component,
through Class A-J
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
Distribution Date Classes
--------------------------------------------------------------------------------
and including the Distribution Certificates, Class B-1 Component, Class B-2
Date in March 2011 Component, Class C-1 Component, Class C-2
Component and Class D-2 Component
--------------------------------------------------------------------------------
Any Distribution Date Class A-4B Component, Class A-4C Component,
occurring after March 2011 and Class A-J Certificates, Class B-1 Component,
through and including the Class B-2 Component and Class C-2 Component
Distribution Date in March
2012
--------------------------------------------------------------------------------
Any Distribution Date Class A-4C Component, Class A-J Certificates,
occurring after March 2012 Class B-2 Component
through and including the
Distribution Date in March
2013
--------------------------------------------------------------------------------
Any Distribution Date None
occurring after March 2013
--------------------------------------------------------------------------------
"CLASS X-2 NOTIONAL AMOUNT" means,
(A) with respect to any Distribution Date occurring on or before the
Distribution Date in March 2013, the aggregate of the Certificate Balances of
the Class X-2 Interest Components for such Distribution Date, computed as of the
close of business on the preceding Distribution Date, and
(B) with respect to any Distribution Date occurring after the
Distribution Date in March 2013, zero.
"CLASS X-2 STRIP RATE" means,
(A) for any Distribution Date occurring on or before March 2013, with
respect to any Class of Class X-2 Interest Components for such Distribution
Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in the Rate Schedule for
such Distribution Date and (ii) the Weighted Average REMIC I Net Mortgage Rate
for such Distribution Date over (y) the Pass-Through Rate for such Class; and
(B) for any Distribution Date occurring after March 2013, the Class
X-2 Strip Rate for any Certificate or Component will be equal to zero.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means March 31, 2005.
-20-
"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 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 Special
Servicer and the majority certificateholder of the Controlling Class.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of the Mortgage Loans other than the Specially
Serviced Mortgage Loans resulting from (x) voluntary Principal Prepayments on
such Mortgage Loans (but not including any B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion Mortgage Loan) or (y) to the extent that the
Master Servicer did not apply the proceeds thereof in accordance with the terms
of the related Mortgage Loan documents or enforce such terms, involuntary
Principal Prepayments during the related Collection Period over (ii) the
aggregate of Prepayment Interest Excesses resulting from Principal Prepayments
on the Mortgage Loans (but not including any B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion Mortgage Loan) during the same Collection
Period and (B) the aggregate of the portion of the aggregate Master Servicing
Fee accrued at a rate per annum equal to 2 basis points for the related
Collection Period calculated in respect of all the Mortgage Loans (including REO
Mortgage Loans but not
-21-
including any B Note, Non-Serviced Companion Mortgage Loan or Serviced Companion
Mortgage Loan); provided, however that if a Prepayment Interest Shortfall on a
Mortgage Loan (but not including any B Note, Non-Serviced Companion Mortgage
Loan or Serviced Companion Mortgage Loan) results due to the Master Servicer's
failure to enforce the terms of the applicable Mortgage Loan documents, the 2
basis point limitation shall not be applicable with respect to such Mortgage
Loan and in such event, the amount specified in clause (B) above shall also
include any investment income earned on the amount prepaid with respect to such
Mortgage Loan prior to such Distribution Date.
"COMPONENT" means any of the Class A-1A Component, the Class A-1B
Component, the Class A-1C Component, the Class A-2A Component, the Class A-2B
Component, the Class A-2C Component, the Class A-3A Component, the Class A-3B
Component, the Class A-ABA Component, the Class A-ABB Component, the Class A-4A
Component, the Class A-4B Component, the Class A-4C Component, the Class B-1
Component, the Class B-2 Component, the Class C-1 Component, the Class C-2
Component, the Class D-1 Component, the Class D-2 Component, the Class E-1
Component, the Class E-2 Component, the Class G-1 Component, the Class G-2
Component, the Class J-1 Component, the Class J-2 Component, the Class M-1
Component and the Class M-2 Component.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental authority, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable)
its related B Note or Serviced Companion Mortgage Loan. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Condemnation
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage or A Note, as applicable, shall be included
in Condemnation Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC Regular
Certificates outstanding at any time of determination; provided, that, if the
aggregate Certificate Balance of such Class is less than 25% of the initial
Certificate Balance of such Class as of the Closing Date, the Controlling Class
shall be the next most subordinate Class of REMIC Regular Certificates
outstanding. As of the Closing Date, the Controlling Class will be the Class Q
Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 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 for certificate transfer purposes at Xxxxx
Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx Xxxxxx, XXX #X0000 121, Minneapolis
55479-
-22-
0113, Attention: Corporate Trust Services Group Xxxxxx Xxxxxxx Corporate Capital
I Inc. Series 2005-HQ5, and for all other purposes at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) Xxxxxx
Xxxxxxx Capital I Series 2005-HQ5, 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 and the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Majority Mortgage Loan and the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interest, 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 (or in the case of the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Regular Interest, an initial principal amount (the initial
"Certificate Balance") equal to the Certificate Balance of the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC Regular Interest).
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with respect to
each Class of Certificates other than the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class G Certificates, Class J Certificates and Class M
Certificates, the REMIC II Regular Interest having the same letter designation,
(ii) with respect to the Class A-1 Certificates, the REMIC II Regular Interest
A-1A, the REMIC II Regular Interest A-1B and the REMIC II Regular Interest A-1C,
(iii) with respect to the Class A-2 Certificates, the REMIC II Regular Interest
A-2A, the REMIC II Regular Interest A-2B and the REMIC II Regular Interest A-2C,
(iv) with respect to the Class A-3 Certificates, the REMIC II Regular Interest
A-3A and the REMIC II Regular Interest A-3B, (v) with respect to the Class A-AB
Certificates, the REMIC II Regular Interest A-ABA and the REMIC II Regular
Interest A-ABB, (vi) with respect to the Class A-4 Certificates, the REMIC II
Regular Interest A-4A, the REMIC II Regular Interest A-4B and the REMIC II
Regular Interest A-4C, (vii) with respect to the Class B Certificates, the REMIC
II Regular Interest B-1 and the REMIC II Regular Interest B-2, (viii) with
respect to the Class C Certificates, the REMIC II Regular Interest C-1 and the
REMIC II Regular Interest C-2, (ix) with respect to the Class D Cetificates, the
REMIC II Regular Interest D-1 and the REMIC II Regular Interest D-2, (x) with
respect to the Class E Certificates, the REMIC II Regular Interest E-1 and the
REMIC II Regular Interest E-2, (xi) with respect to the Class G Certificates,
the REMIC II Regular Interest G-1 and the REMIC II Regular Interest G-2, (xii)
with respect to the Class J Certificates, the REMIC II Regular Interest J-1 and
the REMIC II Regular Interest J-2, (xiii) with respect to the Class M
Certificates, the REMIC II Regular Interest M-1 and the REMIC II Regular
Interest M-2, and (xiv) with respect to each Component, the REMIC II Regular
Interest having the same letter and number designation.
"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 each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
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"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 March 1, 2005. The Cut-Off
Date for any Mortgage Loan that has a Due Date on a date other than the first
day of each month shall be the end of business on March 1, 2005, and Scheduled
Payments due in March 2005 with respect to Mortgage Loans not having Due Dates
on the first of each month have been deemed received on March 1, 2005, not the
actual day on which such Scheduled Payments were due.
"CWCAPITAL II" has the meaning set forth in the Preliminary Statement
hereto.
"CWCAPITAL LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"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.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced Companion
Mortgage Loan that is in default under the terms of the applicable Mortgage Loan
documentation and for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the 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
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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 Trustee and the Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 9th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
and (ii) the 4th Business Day prior to the related Distribution Date, commencing
in April 2005.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
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"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master 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 Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest in
respect of such Class or Interest, reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest Shortfalls for such Class of Certificates or
Interests, allocated on such Distribution Date to such Class or Interest
pursuant to Section 6.7, and (ii) Realized Losses allocated on such Distribution
Date to reduce the Distributable Certificate Interest payable to such Class or
Interest pursuant to Section 6.6, plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Trustee, in accordance with the provisions of Section 5.3, which account
shall be an Eligible Account.
"DISTRIBUTION DATE" means the 14th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing April 14,
2005.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
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"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "A-1" by S&P and "F-1" by Fitch, if the deposits are
to be held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "AA-" by S&P (or "A" (without regard to any plus
or minus), if the short-term unsecured debt obligations are rated at least
"A-1") and at least "AA-" 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 or other financial institution
having a combined capital and surplus of at least $50,000,000 and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), (iii) an account or accounts maintained
with PNC Bank, National Association ("PNC") so long as PNC's long-term unsecured
debt rating shall be at least "A" from Fitch and "A" (without regard to any plus
or minus), if the short-term unsecured debt obligations are rated at least "A-1"
from S&P (if the deposits are to be held in the account for more than 30 days)
or PNC's short-term deposit or short-term unsecured debt rating shall be at
least "F1" from Fitch and "A-1" from S&P (if the deposits are to be held in the
account for 30 days or less), or (iv) 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.
"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 or any Affiliate of the Master Servicer, the
Special Servicer 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 "A-1" by S&P or the long-term unsecured debt obligations of such
depository institution or trust company have been assigned a rating by each
Rating Agency at least equal "AA" by Fitch and "AA-" by S&P or its equivalent
or, in each case, if not rated by a Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase
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obligation will mature prior to the Business Day preceding the next date upon
which, as described in this Agreement, such amounts are required to be withdrawn
from 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;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1" by Fitch and "A-1" by S&P (or for which Rating Agency Confirmation is
obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that are rated in highest long-term category by Fitch, or if not rated by Fitch,
then Fitch has issued a Rating Agency Confirmation, and "AAAm" by S & P;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" by Fitch and "AA-" by S&P,
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 Trustee or its affiliates) that maintain a constant asset value and that
are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P and "AAA" (or its
equivalent rating) 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 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
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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 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).
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"EXCESS INTEREST" means, with respect to an ARD Loan held by the Trust
if an ARD Loan is not prepaid in full on or before its Anticipated Repayment
Date, the excess, if any of (i) interest accrued at the rate of interest
applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any
interest on such interest as may be provided for under the related Mortgage Loan
documents) over (ii) interest accrued at the rate of interest applicable to such
Mortgage Loan before such Anticipated Repayment Date. Excess Interest on an ARD
Loan held by the Trust is an asset of the Trust, but shall not be an asset of
any REMIC Pool formed hereunder.
"EXCESS INTEREST GRANTOR TRUST" means that portion of the Trust that
evidences beneficial ownership of the Excess Interest and the Excess Interest
Sub-account, as described in Section 12.5(a) hereof.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed
to be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note, or, in
the case of an REO Property related to a Loan Pair, a Principal Prepayment in
full had been made with respect to both the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds were
received, including, without duplication, accrued and unpaid interest with
respect to such Mortgage Loan and any and all expenses (including Additional
Trust Expenses and Unliquidated Advances) with respect to such Mortgage Loan.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans or
the Serviced Companion Mortgage Loans for which an "excess servicing fee rate"
is designated on the Mortgage Loan Schedule, the monthly fee payable to Midland
Loan Services, Inc. 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 or Serviced Companion Mortgage Loan immediately prior to the Due
Date occurring in each month at the per annum rate (determined in the same
manner as the applicable Mortgage Rate for such Mortgage Loan is determined for
such month) specified on the Mortgage Loan Schedule (the "Excess Servicing Fee
Rate"). The holder of excess servicing rights is entitled to Excess Servicing
Fees only with respect to the Mortgage Loans or Serviced Companion Mortgage
Loans as indicated on Exhibit J hereto.
"EXCHANGE ACT" has the meaning set forth in Section 8.26(a).
"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.
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"EXEMPTION" means each of the individual prohibited transaction
exemptions granted by the United States Department of Labor to the Underwriters,
as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note or Serviced Companion Mortgage Loan by the Master
Servicer in consultation with the Operating Adviser, or by the Special Servicer
in the case of a Specially Serviced Mortgage Loan (including a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B Note that became an REO Property), in
each case, in its good faith discretion, consistent with the Servicing Standard,
that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds,
Purchase Proceeds and other payments or recoveries that the Master Servicer or
the Special Servicer, as the case may be, expects to be finally recoverable on
such Mortgage Loan, Serviced Companion Mortgage Loan or B Note, without regard
to any obligation of the 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 of such
determination and the Trustee 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, Intex Solutions, Inc.
and S&P's Conquest, or any successor entities thereof.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
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"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"GCCFC 2004-GG1 DEPOSITOR" means the "depositor" under the GCCFC
2004-GG1 Pooling and Servicing Agreement, which as of the Closing Date is
Greenwich Capital Commercial Funding Corp.
"GCCFC 2004-GG1 FISCAL AGENT" means the "fiscal agent" under the GCCFC
2004-GG1 Pooling and Servicing Agreement, which as of the Closing Date is ABN
AMRO Bank N.V.
"GCCFC 2004-GG1 MASTER SERVICER" means the "master servicer" under the
GCCFC 2004-GG1 Pooling and Servicing Agreement, which as of the Closing Date is
Wachovia Bank, National Association.
"GCCFC 2004-GG1 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement, dated as of May 1, 2004, by and between the GCCFC 2004-GG1
Depositor, the GCCFC 2004-GG1 Master Servicer, the GCCFC 2004-GG1 Special
Servicer, the GCCFC 2004-GG1 Trustee and the GCCFC 2004-GG1 Fiscal Agent,
pursuant to which the GCCFC 2004-GG1 Trust issued its Commercial Mortgage
Pass-Through Certificates, 2004-GG1.
"GCCFC 2004-GG1 SPECIAL SERVICER" means the "special servicer" under
the GCCFC 2004-GG1 Pooling and Servicing Agreement, which as of the Closing Date
is Lennar Partners, Inc.
"GCCFC 2004-GG1 TRUST" means the trust established pursuant to the
GCCFC 2004-GG1 Pooling and Servicing Agreement.
"GCCFC 2004-GG1 TRUSTEE" means the "trustee" under the GCCFC 2004-GG1
Pooling and Servicing Agreement, which as of the Closing Date is LaSalle Bank
National Association.
"GMAC 2004-C3 DEPOSITOR" means the "depositor" under the GMAC 2004-C3
Pooling and Servicing Agreement, which as of the Closing Date is GMAC Commercial
Mortgage Securities, Inc.
"GMAC 2004-C3 MASTER SERVICER" means the "master servicer" under the
GMAC 2004-C3 Pooling and Servicing Agreement, which as of the Closing Date is
GMAC Commercial Mortgage Corporation.
"GMAC 2004-C3 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement, dated as of December 1, 2004, by and between the GMAC
2004-C3 Depositor, the GMAC 2004-C3 Master Servicer, the GMAC 2004-C3 Special
Servicer and the GMAC 2004-C3 Trustee, pursuant to which the GMAC 2004-C3 Trust
issued its Commercial Mortgage Pass-Through Certificates, 0000-X0.
"XXXX 2004-C3 SPECIAL SERVICER" means the "special servicer" under the
GMAC 2004-C3 Pooling and Servicing Agreement, which as of the Closing Date is
GMAC Commercial Mortgage Corporation.
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"GMAC 2004-C3 TRUST" means the trust established pursuant to the GMAC
2004-C3 Pooling and Servicing Agreement.
"GMAC 2004-C3 TRUSTEE" means the "trustee" under the GMAC 2004-C3
Pooling and Servicing Agreement, which as of the Closing Date is Xxxxx Fargo
Bank, National Association.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"HOUSTON CENTER COMPANION LOAN" means, the notes secured by the
Houston Center Pari Passu Mortgage on a pari passu basis with the Houston Center
Pari Passu Loan and which is not included in the Trust. The Houston Center
Companion Loan is not a "Mortgage Loan."
"HOUSTON CENTER PARI PASSU LOAN" means, the Mortgage Loan designated
as Mortgage Loan No. 10 on the Mortgage Loan Schedule and which is secured on a
pari passu basis with the Houston Center Companion Loan secured by the related
Mortgaged Property pursuant to the Houston Center Pari Passu Mortgage. The
Houston Center Pari Passu Loan is a "Mortgage Loan."
"HOUSTON CENTER PARI PASSU MORTGAGE" means, the Mortgage securing the
Houston Center Companion Loan and the Houston Center Pari Passu Loan and any
other note secured by the related Mortgaged Property.
"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 within the meaning of Section
856(d)(3) of the Code if such REMIC were a real estate investment trust (except
that the ownership test set forth in such Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of the Aggregate
Certificate Balance or Notional Amount, as the case may be, of any Class of the
Certificates (other than the Class R-III Certificates), a Percentage Interest of
35% or more in the Class R-III Certificates or such other interest in any
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Class of the Certificates or of the applicable REMIC 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 does not receive or derive any income from such Person and
provided that the relationship between such Person and such REMIC is at arm's
length, all within the meaning of Treasury Regulation 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.
"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 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note and B Note, as the same may be further
amended from time to time in accordance with the terms thereof.
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"INTEREST" means a 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Interest, a
REMIC I Interest or a REMIC II Interest, as applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Trustee pursuant to Section 5.3(a), which account shall be an
Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTERESTED PERSON" means, as of any date of determination, the Master
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.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses in connection with a closing, brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses
relating to 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
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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 and any Condemnation Proceeds
and Insurance Proceeds received by the Trust (other than Liquidation Proceeds
received in connection with any Non-Serviced Mortgage Loan) for distribution to
the Certificateholders and the holders of any Serviced Companion Mortgage Loans
and B Notes; provided, however, that (i) in the case of a final disposition
consisting of the repurchase of a Mortgage Loan or REO Property by a Seller
pursuant to Section 2.3, such fee will only be paid by the applicable Seller if
repurchased after the date that is 180 days after such Seller receives notice of
the breach or defect causing the repurchase and (ii) in the case of an A/B
Mortgage Loan, such fee will not be payable if the holder of the related B Note
exercises its option to purchase the A Note pursuant to the Intercreditor
Agreement; provided, that this clause (ii) shall not be applicable if the holder
of the related B Note has exercised its right to cure three consecutive monetary
defaults under the Intercreditor Agreement and a monetary default occurs in the
following month.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of
a Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note or related REO
Property (net of Liquidation Expenses) and with respect to the sale or
liquidation of any REO Property related to any Non-Serviced Mortgage Loan and
Non-Serviced Companion Mortgage Loan, any portion of such amounts allocable to
the related Non-Serviced Mortgage Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance (as increased by an Unliquidated Advance with respect
to such Mortgage Loan) of the Mortgage Loan (or such deemed Principal Balance,
in the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or
REO Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses (including Additional Trust
Expenses, unpaid Servicing Advances and unpaid Advance Interest) incurred in
connection with such Mortgage Loan that have been paid or are payable or
reimbursable to any Person, other than amounts included in the definition of
Liquidation Expenses and amounts previously treated as Expense Losses
attributable to principal (and interest thereon) minus the sum of (i) REO Income
applied as recoveries of principal or interest on the related Mortgage Loan or
REO Property, and (ii) Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, Late Collections and all other amounts recovered from the related
Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred and which are not required under any
Intercreditor Agreement, any Loan Pair Intercreditor Agreement or Non-Serviced
Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any
holder of a B Note, a Serviced Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income received on an REO Property and Liquidation
Proceeds received on or in respect of a Mortgage Loan or REO Property shall be
applied first to reimburse the 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 not otherwise reimbursed, and then for all Workout-Delayed
Reimbursement Amounts with respect to such related Mortgage Loan (but not any
such amount that has become
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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 described
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as described in clause (A) above.
"LOAN PAIR" means a Serviced Pari Passu Mortgage Loan and the related
Serviced Companion Mortgage Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the
allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"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 Sub-Servicer on its behalf)
pursuant to which a Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 7.18.
"MAI" means Member of the Appraisal Institute.
"MAJORITY MORTGAGE LOAN" shall mean any Mortgage Loan other than the
000 Xxxxxx Xxxxxx Pari Passu Loan.
"MASTER SERVICER" means Midland Loan Services, Inc. and its permitted
successors or assigns.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in Section
8.3(a).
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"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 Trustee containing such information regarding the Mortgage Loans as will
permit the Trustee 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
Trustee 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, B Note and Non-Serviced
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), 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, B Note
or Non-Serviced Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan, Serviced Companion Mortgage Loan, B
Note or Non-Serviced Mortgage Loan immediately before the Due Date occurring in
such month, subject to reduction in respect of Compensating Interest, as set
forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage Loan,
Non-Serviced Mortgage Loan, Serviced Companion Mortgage Loan and B Note
(including any Mortgage Loan relating to an REO Property), the rate per annum
specified as such on the Mortgage Loan Schedule.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section
2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as of any date of determination, the date on
which the last payment of principal is due and payable thereunder, after taking
into account all Principal Prepayments received and any Deficient Valuation,
Debt Service Reduction Amount or modification of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note occurring prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note or (ii) any grace
period permitted by such Mortgage Loan, B Note or Serviced Companion Mortgage
Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MODIFICATION FEE" means a fee, if any, (a) collected from a Mortgagor
by the Master Servicer in connection with a modification of any Mortgage Loan
(other than a Non-
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Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note other than a
Specially Serviced Mortgage Loan or (b) collected in connection with a
modification by the Special Servicer of a Specially Serviced Mortgage Loan.
"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 Trustee monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums; (iii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans at the close of business on such Determination Date; (iv) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (v) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(vi) as of the related Determination Date (A) as to any REO Property sold during
the related Collection Period, the date of the related determination by the
Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(vii) the Aggregate Certificate Balance or Notional Amount, as the case may be,
of each Class of Certificates before and after giving effect to the distribution
made on such Distribution Date; (viii) the aggregate amount of Principal
Prepayments made during the related Collection Period; (ix) the Pass-Through
Rate applicable to each Class of Certificates for such Distribution Date; (x)
the aggregate amount of the Master Servicing Fee, the Special Servicing Fee, the
Excess Servicing Fees and the fees paid to the applicable Non-Serviced Mortgage
Loan Master Servicer and the Non-Serviced Mortgage Loan Special Servicer solely
as such fees relate to the Non-Serviced Mortgage Loans; (xi) the amount of
Unpaid Interest and Realized Losses, if any,
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incurred with respect to the Mortgage Loans, including a breakout by type of
such Realized Losses; (xii) the aggregate amount of Servicing Advances and the
aggregate amount of P&I Advances outstanding, each separately stated, that have
been made by the Master Servicer, the Special Servicer and the Trustee and the
aggregate amount of Servicing Advances and P&I Advances made by the applicable
Non-Serviced Mortgage Loan Master Servicer and Non-Serviced Mortgage Loan
Special Servicer in respect of the Non-Serviced Mortgage Loans and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date (and in the case of the Non-Serviced Mortgage Loans, the
amount of any appraisal reductions effected under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement). In the case of information
furnished pursuant to subclauses (i), (ii) and (xi) above, the amounts shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
principal amount of the Certificates for all Certificates of each applicable
Class.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of Xxxxx Fargo Bank, National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ5, without recourse, representation or
warranty other than as set forth in the Mortgage Loan Purchase Agreement" or if
the original Mortgage Note is not included therein, then a lost note affidavit
and indemnity with a copy of the Mortgage Note attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true
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copies of such modifications, consolidations and extensions certified by the
applicable Seller together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original modification, consolidation or extension agreement has been
dispatched or sent to the appropriate public recording official for recordation
or (B) in the case of an original modification, consolidation or extension
agreement that has been lost after recordation, a certification by the
appropriate county recording office where such document is recorded that such
copy is a true and complete copy of the original recorded modification,
consolidation or extension agreement, and the originals of all assumption
agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of record in
blank or in favor of "Xxxxx Fargo Bank, National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5;" provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no Assignment of Mortgage in favor of the Trustee
will be required to be recorded or delivered and instead, the applicable Seller
shall take all actions as are necessary to cause the Trustee to be shown as, and
the Trustee shall take all actions necessary to confirm that it is shown as, the
owner of the related Mortgage on the record of MERS for purposes of the system
of recording transfers of beneficial ownership of mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the Seller, a copy thereof certified by the
Seller or, if any original intervening assignment of Mortgage has not yet been
returned on or prior to the 45th day following the Closing Date from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the applicable Seller
to be a true and complete copy of the original Assignment of Leases submitted
for recording, together with (A) an original of each assignment of such
Assignment of Leases with evidence of recording thereon and showing a complete
recorded chain of assignment from the named assignee to the holder of record,
and if any such assignment of such Assignment of Leases has not been returned
from the applicable public recording office, a copy of such assignment certified
by the applicable Seller to be a true and complete copy of the original
assignment submitted for recording, and (B) an original assignment of such
Assignment of
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Leases, in recordable form, signed by the holder of record in favor of "Xxxxx
Fargo Bank, National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5," which
assignment may be effected in the related Assignment of Mortgage; provided, if
the related Assignment of Leases has been recorded in the name of MERS or its
designee, no assignment of Assignment of Leases in favor of the Trustee will be
required to be recorded or delivered and instead, the applicable Seller shall
take all actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm that it is shown as, the
owner of the related Assignment of Leases on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee duly
authorized and executed and delivered in connection with the Mortgage Loan;
provided, if the related Mortgage has been recorded in the name of MERS or its
designee, no such UCC-2 or UCC-3 financing statements will be required to be
recorded or delivered and instead, the applicable Seller shall take all actions
as are necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the related
UCC financing statements on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Master Servicer, and applied, drawn, reduced or released in
accordance with documents evidencing or securing the applicable Mortgage Loan
and this Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the 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 and this Agreement (it being
understood that each Seller has agreed (a) that the proceeds of such
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letter of credit belong to the Trust, (b) to notify, on or before the Closing
Date, the bank issuing the letter of credit that the letter of credit and the
proceeds thereof belong to the Trust, and to use reasonable efforts to obtain
within 30 days (but in any event to obtain within 90 days) following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of a Seller to assign the letter of credit hereunder). In the case of
clause (B) above, the 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
Master Servicer sells its rights to service the applicable Mortgage Loan, the
Master Servicer will assign the applicable letter of credit to the Trust or at
the direction of the Special Servicer (with respect to any Specially Serviced
Mortgage Loan) to such party as the Special Servicer may instruct, in each case,
at the expense of the Master Servicer. The Master Servicer shall indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged Properties
operated as hotels and for all Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of copies of
the documents specified above (other than the Mortgage Notes (and all
intervening endorsements) respectively evidencing such Non-Serviced Mortgage
Loan with respect to which the originals shall be required), including a copy of
such Non-Serviced Mortgage Loan Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I and Mortgage Loan Purchase Agreement II, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of March 21, 2005
with respect to the MSMC Loans, a form of which is attached hereto as Exhibit
K-1.
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"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between CWCapital II and the Depositor dated as of March 21,
2005 with respect to the CWCapital Loans, a form of which is attached hereto as
Exhibit K-2.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each MSMC Loan and the
schedule attached hereto as Schedule II, which identifies each CWCapital Loan as
such schedules may be amended from time to time pursuant to Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, Serviced Companion
Mortgage Loan or B Note, the per annum rate at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion Mortgage
Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSCI 2004-HQ4 DEPOSITOR" means the "depositor" under the MSCI
2004-HQ4 Pooling and Servicing Agreement, which as of the Closing Date is Xxxxxx
Xxxxxxx Capital I Inc.
"MSCI 2004-HQ4 FISCAL AGENT" means the "fiscal agent" under the MSCI
2004-HQ4 Pooling and Servicing Agreement, which as of the Closing Date is ABN
AMRO Bank N.V.
"MSCI 2004-HQ4 MASTER SERVICER" means the "master servicer" under the
MSCI 2004-HQ4 Pooling and Servicing Agreement, which as of the Closing Date is
Xxxxx Fargo Bank, National Association.
"MSCI 2004-HQ4 PAYING AGENT" means the "paying agent" under the MSCI
2004-HQ4 Pooling and Servicing Agreement, which as of the Closing Date is Xxxxx
Fargo Bank, National Association.
"MSCI 2004-HQ4 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement, dated as of October 1, 2004, by and between the MSCI
2004-HQ4 Depositor, the MSCI 2004-HQ4 Master Servicer, the MSCI 2004-HQ4 Special
Servicer, the MSCI 2004-HQ4 Trustee, the MSCI 2004-HQ4 Paying Agent and the MSCI
2004-HQ4 Fiscal Agent, pursuant to which the MSCI 2004-HQ4 Trust issued its
Commercial Mortgage Pass-Through Certificates, Series 2004-HQ4.
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"MSCI 2004-HQ4 SPECIAL SERVICER" means the "special servicer" under
the MSCI 2004-HQ4 Pooling and Servicing Agreement, which as of the Closing Date
is GMAC Commercial Mortgage Corporation.
"MSCI 2004-HQ4 TRUST" means the trust established pursuant to the MSCI
2004-HQ4 Pooling and Servicing Agreement.
"MSCI 2004-HQ4 TRUSTEE" means the "trustee" under the MSCI 2004-HQ4
Pooling and Servicing Agreement, which as of the Closing Date is LaSalle Bank
National Association.
"MSMC" has the meaning set forth in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of
aggregate Prepayment Interest Shortfalls for such Mortgage Loans over the sum of
(A) the Compensating Interest to be paid by the Master Servicer on such
Distribution Date and (B) the aggregate Prepayment Interest Excesses for such
Collection Period for all Mortgage Loans which are not Specially Serviced
Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action 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.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of Fitch or S&P.
"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,
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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 an outstanding Advance, would not be, ultimately recoverable, from
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan or Serviced Companion Mortgage Loan (and taking into consideration any
Crossed Mortgage Loans) (in the case of Servicing Advances) or B Note (in the
case of Servicing Advances) or REO Property (in the case of P&I Advances and
Servicing Advances), as evidenced by an Officer's Certificate delivered pursuant
to Section 4.4. Such Officer's Certificate shall be delivered to the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor (if the
Trustee is delivering such Officer's Certificate) and (in either case) to the
Special Servicer 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 recoverability 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. Absent bad faith, any such determination shall be conclusive and
binding on the Certificateholders, the Master Servicer and the Trustee. Absent
bad faith, and pursuant to Section 4.1A of this Agreement, any determination as
to the recoverability of any advance made with respect to any Non-Serviced
Mortgage Loan by the 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. In connection with the
determination of whether an advance made would be a Nonrecoverable Advance
relating to a B Note, the Master Servicer and Special Servicer shall also take
into account (among other things) any insurance proceeds and condemnation
proceeds (in excess of such proceeds payable in respect of the related A Note)
received in respect of the Mortgaged Properties.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X-1, 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.
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"NON-SERVICED COMPANION MORTGAGE LOAN" means, collectively, the Xxxxx
REF Portfolio Companion Loans, the Houston Center Companion Loans and the 000
Xxxxxx Xxxxxx Companion Loans.
"NON-SERVICED MORTGAGE LOAN" means, collectively, the Xxxxx REF
Portfolio Pari Passu Loan, the Houston Center Pari Passu Loan and the 000 Xxxxxx
Xxxxxx Pari Passu Loan.
"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, (i) with
respect to Mortgage Loan Nos. 1-9, that certain co-lender agreement, dated
October 19, 2004, by and between the holders of the Xxxxx REF Portfolio Pari
Passu Loan and the Xxxxx REF Portfolio Companion Loans, (ii) with respect to
Mortgage Loan No. 10, that certain co-lender agreement, dated December 21, 2004
by and between the holders of the Houston Center Pari Passu Loan and the Houston
Center Companion Loans and (iii) with respect to Mortgage Loan No. 15, that
certain co-lender agreement, dated May 13, 2004, by and between the holders of
the 000 Xxxxxx Xxxxxx Pari Passu Loan and the 000 Xxxxxx Xxxxxx Companion Loans,
as each may be amended from time to time in accordance with the terms thereof.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the Xxxxx REF Portfolio
Mortgage, the Houston Center Mortgage or the 000 Xxxxxx Xxxxxx Mortgage, as
applicable.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means the
MSCI 2004-HQ4 Pooling and Servicing Agreement, the GMAC 2004-C3 Pooling and
Servicing Agreement or the GCCFC 2004-GG1 Pooling and Servicing Agreement, as
applicable.
"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 (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master 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
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Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible
Officer, and (y) in the case of a Seller, a certificate signed by one or more of
the Chairman of the Board, any Vice Chairman, any Managing Director or Director,
the President, or any Executive Vice President, any Senior Vice President, Vice
President, Second Vice President or Assistant Vice President, each with specific
responsibilities for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall mean the Person elected to serve as the
Operating Adviser pursuant to Section 9.37(a); provided, that, with respect to
an A/B Mortgage Loan, a holder of the related B Note, will, to the extent set
forth in the related Intercreditor Agreement, instead be entitled to the rights
and powers granted to the Operating Adviser under the Pooling and Servicing
Agreement to the extent that such rights and powers relate to the related A/B
Mortgage Loan (but only so long as the holder or the related B Note is the
directing holder or controlling holder, as defined in the related Intercreditor
Agreement).
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee, reasonably acceptable in form and substance to the Trustee, 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, 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 the Trust or any REMIC Pool.
"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 the MSCI
2004-HQ4 Pooling and Servicing Agreement, the GMAC 2004-C3 Pooling and Servicing
Agreement or the GCCFC 2004-GG1 Pooling and Servicing Agreement or any other
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 the MSCI 2004-HQ4 Master Servicer, the
GMAC 2004-C3 Master Servicer, the GCCFC 2004-GG1 Master Servicer or any other
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 or 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Net
Mortgage Rate, as applicable, relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee and the Excess Servicing Fee; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the interest component of any P&I Advance with respect
to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an
amount equal to the product of (i) the amount of interest required to be
advanced without giving effect to this proviso and (ii) a fraction, the
numerator of which is the Principal Balance of such Mortgage Loan as of the
immediately preceding Determination Date less any Appraisal Reduction applicable
to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the portion of such Appraisal Reduction
allocable (based upon their respective Principal Balances) to such Non-Serviced
Mortgage Loan or Serviced Pari Passu Mortgage Loan under the related
Intercreditor Agreement or the related Loan Pair Intercreditor Agreement, or in
the case of an A/B Mortgage Loan, the portion of such Appraisal Reduction
allocable to the A Note pursuant to the definition of an "Appraisal Reduction")
and the denominator of which is the Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I Advances for any Mortgage Loans that have
been modified shall be calculated on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
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"P&I PARI PASSU LOANS" has the meaning set forth in Section 4.1A
hereof.
"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the related Mortgaged Property
generally, the portion thereof attributable to any Non-Serviced Mortgage Loan
shall be determined based on the outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan as set forth in the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement; provided, however, that the Pari Passu
Loan Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan set forth
on Schedule XIX as to which such fee is calculated on a 30/360 basis shall be
(a) the related "Master Servicing Fee Rate" set forth in the Non-Serviced
Mortgage Loan Pooling and Servicing Agreement, multiplied by (b) 30 divided by
the actual number of days in the loan accrual period with respect to such loan.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, other than the Class X, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class
P and Class Q Certificates, for the first Distribution Date, the rate set forth
in the Preliminary Statement hereto (subject to the calculations set forth in
the following sentence). For any Distribution Date occurring thereafter (and
with respect to the Class X, Class B, Class C, Class E, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P and Class Q, for each
Distribution Date), the Pass-Through Rates for (i) the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Regular Interest is the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC
Net Mortgage Rate for such Distribution Date, (ii) the REMIC I Regular Interests
shall equal the REMIC I Net Mortgage Rate on the related Mortgage Loan for such
Distribution Date, (iii) the REMIC II Regular Interests shall equal the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (iv) the Class
A-1, Class A-2, Class A-3, Class A-AB and Class A-4 Certificates, the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto, (v)
the Class A-J Certificates Certificates shall equal the lesser of (A) 5.242% per
annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (vi) the Class B Certificates shall equal the lesser of (A)
5.272% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (vii) the Class C Certificates shall equal the lesser of (A)
5.302% per annum and (B) the Weighted
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Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class D
Certificates shall equal the lesser of (A) 5.336% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (ix) the Class E
Certificates shall equal the lesser of (A) 5.378% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (x) the Class F
Certificates shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date less 0.06%, (xi) the Class G, Class H and Class J Certificates
shall equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, (xii) the Class K, Class L, Class M, Class N, Class O, Class P and Class Q
Certificates shall equal the lesser of (A) 5.013% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (xiii) the Class
X-1 Certificates, the per annum rate equal to the product of the Accrued
Certificate Interest thereon for such Distribution Date and 12, divided by the
Class X-1 Notional Amount and (xiv) the Class X-2 Certificates, the per annum
rate equal to the product of the Accrued Certificate Interest thereon for such
Distribution Date and 12, divided by the Class X-2 Notional Amount. The
Pass-Through Rate for the Class A-1A Component, the Class A-1B Component and the
Class A-1C Component shall equal the Pass-Through Rate of the Class A-1
Certificates. The Pass-Through Rate for the Class A-2A Component, the Class A-2B
Component and the Class A-2C Component shall equal the Pass-Through Rate of the
Class A-2 Certificates. The Pass-through Rate for the Class A-3A Component and
the Class A-3B Component shall equal the Pass-Through Rate of the Class A-3
Certificates. The Pass-Through Rate for the Class A-ABA Component and the Class
A-ABB Component shall equal the Pass-Through Rate of the Class A-AB
Certificates. The Pass-through Rate for the Class A-4A Component, the Class A-4B
Component and the Class A-4C Component shall equal the Pass-Through Rate of the
Class A-4 Certificates. The Pass-through Rate for the Class B-1 Component and
the Class B-2 Component shall equal the Pass-Through Rate of the Class B
Certificates. The Pass-through Rate for the Class C-1 Component and the Class
C-2 Component shall equal the Pass-Through Rate of the Class C Certificates. The
Pass-Through Rate for the Class D-1 Component and the Class D-2 Component shall
equal the Pass-Through Rate of the Class D Certificates. The Pass-through Rate
for the Class E-1 Component and the Class E-2 Component shall equal the
Pass-Through Rate of the Class E Certificates. The Pass-through Rate for the
Class G-1 Component and the Class G-2 Component shall equal the Pass-Through
Rate of the Class G Certificates. The Pass-through Rate for the Class J-1
Component and the Class J-2 Component shall equal the Pass-Through Rate of the
Class J Certificates. The Pass-Through Rate for the Class M-1 Component and the
Class M-2 Component shall equal the Pass-Through Rate of the Class M
Certificates.
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Class S Certificates and the Residual Certificates, the fraction
of such Class evidenced by such Certificate, expressed as a percentage (carried
to four decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate and
the Class S Certificate, the percentage interest in distributions (if any) to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"PERFORMING PARTY" has the meaning set forth in Section 8.26(b).
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"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated or its
respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLANNED PRINCIPAL BALANCE" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XX.
"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
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) is made after the Due Date for
such Mortgage Loan through and including the last day of the Collection Period,
the amount of interest that accrues on the amount of such Principal Prepayment
from such Due Date to the date such payment was made, plus (if made) any payment
by the Mortgagor of interest that would have accrued to the next succeeding Due
Date (net of the Master Servicing Fee, the Excess Servicing Fees, the Special
Servicing Fee, the Trustee Fee and the servicing fee and trustee fee payable in
connection with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced
Mortgage Loan), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period
(including any shortfall resulting from such a payment during the grace period
relating to such Due Date). The amount of any Prepayment Interest Shortfall
shall equal the excess of (A) the aggregate amount of interest which would have
accrued on the Scheduled Principal Balance of such Mortgage Loan if the Mortgage
Loan had paid on its Due Date and such Principal Prepayment or Balloon Payment
had not been made (net of the Master Servicing Fee, the Excess Servicing Fees,
the Special Servicing Fee, the Trustee Fee and the servicing fee payable in
connection with any Non-
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Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage Loan)) over (B)
the aggregate interest that did so accrue through the date such payment was made
(net of such fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the principal balance of
such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into account all
principal and interest payments made or due on or prior to the Cut-Off Date
(assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan or B Note
with a Due Date in March 2005 that is not March 1, 2005, that principal and
interest payments for such month were paid on March 1, 2005), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal with respect to such Mortgage Loan, Serviced Companion Mortgage Loan,
B Note or any related REO Mortgage Loan that have been collected or received
during any preceding Collection Period, other than any Scheduled Payments due in
any subsequent Collection Period, and (ii) any Realized Principal Loss incurred
in respect of such Mortgage Loan or related REO Mortgage Loan during any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, 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 and Class Q Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
amount equal to the excess, if any, of
(I) the sum of:
(A) the aggregate (without duplication) of the following:
(i) the principal portion of all Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled Payments, in
each case, to the extent received or advanced, as the case may be, in respect of
the Mortgage Loans and any REO Mortgage Loans (but not in respect of any
Serviced Companion Mortgage Loan or B Note or its successor REO Mortgage Loan)
for their respective Due Dates occurring during the related Collection Period;
and
(ii) all payments (including Principal Prepayments and the principal
portion of Balloon Payments but not in respect of any Serviced Companion
Mortgage Loan or B Note or its
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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 Workout-Delayed Reimbursement
Amount for which a deduction was made under clause (II)(A) below with respect to
such Distribution Date; 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; over
(II) the sum of:
(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 March 21, 2005, pursuant to which the Class X-1, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and
Class S Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
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"PURCHASE PRICE" means, with respect to the purchase by a Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum (without
duplication) of (A) 100% of the unpaid Principal Balance of such Mortgage Loan
(or deemed Principal Balance, in the case of an REO Mortgage Loan), plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection Period in which such purchase or
liquidation occurs, plus (C) the amount of any expenses related to such Mortgage
Loan and any related Serviced Companion Mortgage Loan, B Note or REO Property
(including any Servicing Advances and Advance Interest thereon (which have not
been paid by the Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor on the related Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) related to such Mortgage Loan and any related
Serviced Companion Mortgage Loan or B Note, the amount of any Servicing Advances
(and Advance Interest thereon) that were reimbursed from principal collections
on the Mortgage Pool pursuant to Section 5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are reimbursable or payable to the
Master Servicer, the Special Servicer, 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 related Mortgage Loan Purchase
Agreement, all expenses reasonably incurred or to be incurred by the Master
Servicer, the Special Servicer, the Depositor or the Trustee in respect of the
Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the 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 or (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).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch if rated by Fitch or if not rated by Fitch, then Fitch has
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issued a Rating Agency Confirmation and "A" by S&P if rated by S&P or if not
rated by S&P, then S&P has issued a Rating Agency Confirmation, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability no lower than
"A" by Fitch if rated by Fitch or if not rated by Fitch, then as to which Fitch
has issued a Rating Agency Confirmation, and "A" by S&P if rated by S&P or if
not rated by S&P, then S&P has issued a Rating Agency Confirmation, 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 (other than for purposes of calculating Compensating
Interest); (ii) is accruing interest at a rate of interest at least equal to
that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity
not greater than, and not more than two years less than, that of the Deleted
Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than that of
the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to the
outstanding principal balance on the date of substitution divided by its current
Appraised Value) not higher than the current Loan-to-Value Ratio of the Deleted
Mortgage Loan and has a current Debt Service Coverage Ratio equal to or greater
than the current Debt Service Coverage Ratio of the Deleted Mortgage Loan; (v)
will comply with all of the representations and warranties relating to Mortgage
Loans set forth herein, as of the date of substitution; (vi) has a Phase I
Environmental Report relating to the related Mortgaged Property in its Mortgage
Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard, raise material issues that have not been adequately addressed; (vii)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(viii) as to which the Trustee has received an Opinion of Counsel, at the
related Seller's expense, that such Mortgage Loan is a "qualified replacement
mortgage" within the meaning of Section 860G(a)(4) of the Code; provided that no
Mortgage Loan may have a Maturity Date after the date three years prior to the
Rated Final Distribution Date, and provided, further, that no such Mortgage Loan
shall be substituted for a Deleted Mortgage Loan unless Rating Agency
Confirmation is obtained, and provided, further that no such Mortgage Loan shall
be substituted for a Deleted Mortgage Loan unless the Operating Adviser shall
have approved of such substitution (provided, however, that such approval of the
Operating Adviser may not be unreasonably withheld). In the event that either
one mortgage loan is substituted for more than one Deleted Mortgage Loan or more
than one mortgage loan is
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substituted for one or more Deleted Mortgage Loans, then (A) the Principal
Balance referred to in clause (i) above shall be determined on the basis of
aggregate Principal Balances and (B) the rates referred to in clause (ii) above
and the remaining term to stated maturity referred to in clause (iii) above
shall be determined on a weighted average basis (provided, that the REMIC I Net
Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less than
the highest Pass-Through Rate of any outstanding Class of Certificates that is
not subject to a cap based on the Weighted Average REMIC I Net Mortgage Rate).
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such substitution
shall certify that such Mortgage Loan meets all of the requirements of this
definition and shall send such certification to the Trustee, which shall deliver
a copy of such certification to the Special Servicer and the Operating Adviser
promptly, and in any event within five Business Days following the Trustee's
receipt of such certification.
"RATE SCHEDULE" means, for any Distribution Date listed below, the
schedule listed below and attached hereto:
--------------------------------------------------------------------------------
Distribution Date Schedule
--------------------------------------------------------------------------------
Any Distribution Date occurring on or before March 2006 Schedule IX
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2006 and through and Schedule X
including the Distribution Date in March 2007
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2007 and through and Schedule XI
including the Distribution Date in March 2008
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2008 and through and Schedule XII
including the Distribution Date in March 2009
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2009 and through and Schedule XIII
including the Distribution Date in March 2010
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2010 and through and Schedule XIV
including the Distribution Date in March 2011
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2011 and through and Schedule XV
including the Distribution Date in March 2012
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2012 and through and Schedule XVI
including the Distribution Date in March 2013
--------------------------------------------------------------------------------
Any Distribution Date occurring after March 2013 none
--------------------------------------------------------------------------------
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in January 2042.
"RATING AGENCIES" means Fitch and S&P.
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"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency,
provided that with respect to any matter affecting any Serviced Companion
Mortgage Loan, such confirmation shall also refer to the nationally recognized
statistical rating organizations then rating the securities representing an
interest in such loan and such rating organizations' respective ratings of such
securities.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses treated as Realized Interest
Losses pursuant to clause (iv) of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss described in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance (plus the
amount of any Unliquidated Advance with respect to such Mortgage Loan) of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, any such Expense Loss (other than Expense Losses resulting from
the payment of Special Servicing Fees) to the extent that such Expense Losses do
not exceed amounts collected in respect of the Mortgage Loans that were
identified as allocable to principal in the Collection Period in which such
Expense Losses were incurred, and any such excess shall be treated as a Realized
Interest Loss and (v) any Unliquidated Advance that is determined by the Master
Servicer or the Special Servicer to be a Nonrecoverable Advance.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan, a Serviced Companion Mortgage Loan, a B Note or
REO Property following the period in which a Final Recovery Determination occurs
plus other amounts defined as "Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
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"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 unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMAINING CERTIFICATEHOLDER" means any Holder (or Holders if they act
in unanimity) holding 100% of the then outstanding Class K, Class L, Class M,
Class N, Class O, Class P, Class Q and Class X Certificates or an assignment of
the voting rights thereof; provided, however, that the Certificate Balances of
the Class A Senior, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J Certificates have been reduced to zero.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of (i) the
Majority Mortgage Loans (other than any Excess Interest payable thereon), such
amounts with respect thereto as shall from time to time be held in the
Certificate Account, the Distribution Account (other than the portion thereof
constituting the Excess Interest Sub-account) and the Interest
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Reserve Account (other than with respect to the 000 Xxxxxx Xxxxxx Pari Passu
Loan), the Insurance Policies (other than with respect to the 000 Xxxxxx Xxxxxx
Pari Passu Loan and other than the interests of the holder of any Serviced
Companion Mortgage Loan or B Note therein) and any REO Properties or beneficial
interests therein (other than the interests of the holder of any Serviced
Companion Mortgage Loan or B Note therein) and (ii) the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Regular Interest and collections thereon for which a REMIC
election shall be made pursuant to Section 12.1(a) hereof. Excess Interest on
the Mortgage Loans and the Excess Interest Sub-account shall constitute assets
of the Trust but shall not be a part of any REMIC Pool. The Non-Serviced
Companion Mortgage Loans and any amounts payable thereon shall not constitute
assets of the Trust or any REMIC Pool formed hereunder. No B Note or any amounts
payable thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder. No Serviced Companion Mortgage Loan or any amounts payable thereon
shall constitute an asset of the Trust or any REMIC Pool formed hereunder. The
000 Xxxxxx Xxxxxx Pari Passu Loan, collections thereon, and any related REO
Property acquired in respect thereof are held as assets of the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, (I) as to any REMIC I Regular Interest, other than the REMIC I Regular
Interest corresponding to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interest, a rate per annum equal to (a) with respect to any Majority Mortgage
Loan that accrues interest on the basis of a 360-day year consisting of twelve
(12) 30-day months ("30/360 basis"), (i) the Mortgage Rate thereof (without
taking into account any increase therein after the Anticipated Repayment Date in
respect of an ARD Loan or any default interest rate) as of the Cut-Off Date and
without regard to any modification, waiver or amendment of the terms thereof
following the Cut-Off Date, minus (ii) the Administrative Cost Rate, and (b)
with respect to any Majority Mortgage Loan that accrues interest on a basis
other than a 30/360 basis, the annualized rate that, when applied to the
Principal Balance of the related Mortgage Loan (on the day prior to the Due Date
preceding such Distribution Date) on a 30/360 basis for the related loan accrual
period, yields the amount of net interest that would have accrued during the
related loan accrual period assuming a net interest rate equal to the rate
described in clause (a) above, and assuming an interest accrual basis that is
the same as the actual interest accrual basis of such Mortgage Loan, provided
that for purposes of this clause (b), (i) the REMIC I Net Mortgage Rate for the
loan accrual period relating to the Due Dates in both January and February in
any year that is not a leap year and in February in any year that is a leap
year, shall be determined net of any amounts transferred to the Interest Reserve
Account and (ii) the REMIC I Net Mortgage Rate for the loan accrual period
relating to the Due Date in March (commencing in 2006) shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account and (II) as to the REMIC I Regular Interest corresponding to the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC Net Mortgage Rate.
"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.
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"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests for which a REMIC election shall be made pursuant to Section
12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1A" 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 $8,705,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1B" 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 $64,716,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1C" 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 $47,579,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" 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 $19,334,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $116,561,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2C" 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 $25,005,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3A" 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 $153,963,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3B" 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 $5,437,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-ABA" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial
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Certificate Balance equal to $47,939,000, and which has a Pass-Through Rate
equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-ABB" 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 $18,461,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A" 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 $134,987,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $39,382,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4C" 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 $536,883,000, 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-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 $4,807,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $25,667,000, 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 $8,381,000, 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 $10,665,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST 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 $5,014,000, 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 $10,223,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $1,535,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $15,606,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" 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 F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"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 $7,140,000 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 $8,097,000 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 principal 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-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 $13,581,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $7,369,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST K" 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" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M-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 $762,000, and which has
a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M-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 $4,952,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest A-1C,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular
Interest A-2C, REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B,
REMIC II Regular Interest A-ABA, REMIC II Regular Interest A-ABB, REMIC II
Regular Interest A-4A, REMIC II Regular Interest A-4B, REMIC II Regular Interest
A-4C, REMIC II Regular Interest A-J, REMIC II Regular Interest B-1, REMIC II
Regular Interest B-2, REMIC II Regular Interest C-1, REMIC II Regular Interest
C-2, REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II
Regular Interest E-1, REMIC II Regular Interest E-2, REMIC II Regular Interest
F,
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REMIC II Regular Interest G-1, REMIC II Regular Interest G-2, REMIC II Regular
Interest H, REMIC II Regular Interest J-1, REMIC II Regular Interest J-2, REMIC
II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular Interest
M-1, REMIC II Regular Interest M-2, REMIC II Regular Interest N, REMIC II
Regular Interest O, REMIC II Regular Interest P and REMIC II Regular Interest Q.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests for which a REMIC election shall be made pursuant to
Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the final
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class A-J Certificates, Class X-1
Certificates, Class X-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class O Certificates, Class P Certificates and Class Q Certificates.
"REMIC POOL" means each of REMIC I, REMIC II and REMIC III, the three
segregated pools of assets designated as a REMIC pursuant to Section 12.1(a)
hereof, and the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC designated as a REMIC
pursuant to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Declaration.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A Senior,
Class A-J, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P
and Class Q 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.
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"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan or Loan Pair for any Collection Period, all
income received in connection with such REO Property during such period less any
operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid during such period or, with respect
to an REO Property that had been security for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts described above received with respect to such REO
Property and allocable to the related A Note or Serviced Pari Passu Mortgage
Loan, as applicable, pursuant to the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable to the holder of the related Serviced
Pari Passu Mortgage or the related A Note, as applicable, shall be included in
REO Income.
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing
an A/B Mortgage Loan has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the second Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"REQUEST FOR RELEASE" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"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
Trustee in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC, the Class R-EA Certificates; 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.
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"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee, any officer assigned to the Global Securitization Trust Services Group
with specific responsibilities for the matters contemplated by this Agreement
and when used with respect to any successor Trustee, 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.
"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) prepared by the Master Servicer (combining reports
prepared by the Master Servicer and the Special Servicer (as set forth in
Section 9.32 of this Agreement with respect to Specially Serviced Mortgage Loans
and REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA Special Servicer
Loan File and (vii) a realized loss report substantially in the form included in
Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class Q, Class P,
Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C, Class B, Class A-J and finally to the Class X and
Class A Senior Certificates, on a pro rata basis, as described herein.
"RICHMOND SQUARE A/B MORTGAGE LOAN" means the Richmond Square Mortgage
Loan and the Richmond Square B Note.
"RICHMOND SQUARE B NOTE" means, with respect to the Richmond Square
A/B Mortgage Loan, the related subordinated Mortgage Note not included in the
Trust, which is subordinated in right of payment to the Richmond Square Mortgage
Loan to the extent set forth in the related Intercreditor Agreement.
"RICHMOND SQUARE MORTGAGE" means the Mortgage securing the Richmond
Square A/B Mortgage Loan.
"RICHMOND SQUARE MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 43 on the Mortgage Loan Schedule and which is senior to the
Richmond Square B Note and is secured by the related Mortgaged Property pursuant
to the Richmond Square Mortgage. The Richmond Square Mortgage Loan is a
"Mortgage Loan."
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in Section
8.26(b).
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"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan,
for purposes of performing calculations with respect to any Distribution Date,
the Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to such Mortgage Loan, Serviced Companion
Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan.
"SELLER" means MSMC or CWCapital II, as the case may be.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means the 1370 Avenue of the
Americas Companion Loan. Any Serviced Companion Mortgage Loan is not a "Mortgage
Loan".
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the 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 the 1370 Avenue of the
Americas Pari Passu Loan. Any Serviced Pari Passu Mortgage Loan is a "Mortgage
Loan".
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer or the Trustee, as the
case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify the Master Servicer, the
Special Servicer or the Trustee, 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 or the Trustee's, as the case may be,
directors, officers
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or employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of "Mortgage File" relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"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 OFFICER" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note whose
name and specimen signature appear on a list of servicing officers or employees
furnished to the Trustee by the Master Servicer and signed by an officer of the
Master Servicer, 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 the best interests of
and for the benefit of the Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole (as determined by
the Master Servicer or the Special Servicer, as the case may be, in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement, the terms of the respective Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note (and, in the case of any Loan Pair or any
A Note and B Note, the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties (in the case of the Master Servicer, giving due consideration
to customary and usual standards of practice of prudent institutional commercial
mortgage loan servicers servicing similar Mortgage Loans) or on behalf of
itself, whichever is higher, with respect to mortgage loans and REO properties
that are comparable to those for which it is responsible hereunder;
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(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans, any Serviced Companion Mortgage
Loan and any B Note or, if a Mortgage Loan, any Serviced Companion Mortgage Loan
or any B Note comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery of principal and interest on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any A/B Mortgage
Loan and its related B Note or any Loan Pair, the maximization of recovery on
such A/B Mortgage Loan or Loan Pair, as applicable, to the Certificateholders
and the holder of the related B Note or Serviced Companion Mortgage Loan, as
applicable, all taken as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at a rate, taking into account the related
REMIC I Net Mortgage Rate, in the case of the Mortgage Loans (other than any A
Note or Serviced Pari Passu Mortgage Loan) or the weighted average of the
mortgage rates on the related A Note and B Note and the risk of collection, in
the case of any A/B Mortgage Loan, and on the related Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan in the case of any Loan
Pair); and without regard to: (I) any other relationship that the 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) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which a Balloon Payment
is past due; provided, however, that pursuant to the first sentence of Section
8.18(a)(ii), the Master Servicer shall have the right (without any Person's
consent) to extend the Maturity Date of any Balloon Mortgage Loan for not more
than 60 days beyond the original Maturity Date if the Borrower has obtained a
written commitment for refinancing of the Mortgage Loan or purchase of the
related Mortgaged Property and provided, further, that (a) the Master Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Special Servicer, after the Special Servicer's consultation
with the Operating Adviser) and the Special Servicer, in the circumstances set
forth in the third and fifth sentences of Section 8.18(a)(ii), shall have the
authority to otherwise extend the maturity date of any Balloon Mortgage Loan
and, in the case of such an extension, a Servicing Transfer Event shall not
occur with respect to such Balloon Mortgage Loan and (b) if the Mortgagor makes
the Assumed Scheduled Payments with respect to such Balloon Mortgage Loan and
the Master Servicer or the Special Servicer, as applicable, is considering an
extension pursuant to Section 8.18(a)(ii), a Servicing Transfer Event shall not
occur as a result of such default unless and until such Balloon Payment remains
past due for a period of 30 days and such Balloon Mortgage Loan has not been
extended pursuant to Section 8.18(a)(ii); (ii) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which any other payment of principal and/or interest is more than 60 days past
due or has not been made on or before the second Due Date following
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the Due Date such payment was due; (iii) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which, to the Master Servicer's knowledge, the Mortgagor has consented to the
appointment of a receiver or conservator in any insolvency or similar proceeding
of, or relating to, such Mortgagor or to all or substantially all of its
property, or the Mortgagor has become the subject of a decree or order issued
under a bankruptcy, insolvency or similar law and such decree or order shall
have remained undischarged or unstayed for a period of 30 days; (iv) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Master Servicer shall have received
notice of the foreclosure or proposed foreclosure of any other lien on the
Mortgaged Property; (v) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which the 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
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer) materially and adversely affects the interests of the
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
or B Note and which has occurred and remains unremedied for the applicable grace
period specified in such Mortgage Loan (or, if no grace period is specified, 60
days); (vi) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which the Mortgagor admits in
writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors or voluntarily
suspends payment of its obligations; (vii) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which, in the good faith reasonable judgment of the Master Servicer or the
Special Servicer (subject to the penultimate paragraph of Section 9.39 of this
Agreement and with the consent of the Operating Adviser in the case of a
determination by the Special Servicer), (a) (other than with respect to any A/B
Mortgage Loan) a payment default is imminent or is likely to occur within 60
days, or (b) any other default is imminent or is likely to occur within 60 days
and such default, in the judgment of the Master Servicer or the Special Servicer
(subject to the penultimate paragraph of Section 9.39 of this Agreement and with
the consent of the Operating Adviser in the case of a determination by the
Special Servicer), is reasonably likely to materially and adversely affect the
interests of the Certificateholders or the holder of any related Serviced
Companion Mortgage Loan or B Note (as the case may be); and (viii) with respect
to any A/B Mortgage Loan, if the holder of the B Note chooses not to cure a
monetary default that is permitted to be cured under the related Intercreditor
Agreement, the Business Day following the expiration of the Cure Period (as
defined in the related Intercreditor Agreement) that commences one month after
such monetary default; provided, however, that (1) if the holder of the B Note
exercised its right to cure a monetary default and a monetary default occurs in
the following month due to the holder of the B Note's failure to cure, then
servicing of such Mortgage Loan shall be transferred to the Special Servicer on
the Business Day following the expiration of the Cure Period (as defined in the
related Intercreditor Agreement) of the holder of the B Note if the holder of
the B Note does not cure the current monetary default or (2) if the holder of
the B Note has exercised its right to cure three consecutive monetary defaults
and a monetary default occurs in the following month, then servicing of such
Mortgage Loan shall be transferred to the Special Servicer at the expiration of
the Mortgagor's grace period for the current monetary default. If the event is
based on a determination by the Special Servicer, then the Servicing Transfer
Event shall be subject to the Master Servicer's receipt of notice of such
determination and the consent
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of the Operating Adviser to such determination (subject to the penultimate
paragraph of Section 9.39). If a Servicing Transfer Event occurs with respect to
an A Note, it shall be deemed to have occurred also with respect to its related
B Note. If a Servicing Transfer Event occurs with respect to a B Note, it shall
be deemed to have occurred also with respect to its related A Note. However, if
a Servicing Transfer Event has not occurred with respect to an A Note solely due
to the holder of the related B Note exercising its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such B Note. If a Servicing Transfer Event occurs with respect to any
Serviced Pari Passu Mortgage Loan, it shall be deemed to have occurred also with
respect to the related Serviced Companion Mortgage Loan. If a Servicing Transfer
Event occurs with respect to any Serviced Companion Mortgage Loan, it shall be
deemed to have occurred also with respect to the related Serviced Pari Passu
Mortgage Loan. The parties hereto understand that under the applicable
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if a servicing
transfer event occurs with respect to any Non-Serviced Companion Mortgage Loan,
it shall be deemed to have occurred also with respect to the related
Non-Serviced Mortgage Loan, but shall not be a Specially Serviced Mortgage Loan
pursuant to this Agreement.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means GMAC Commercial Mortgage Corporation, 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.
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"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee 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 the Master
Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note as reasonably requested by the Special Servicer to
enable it to assume its duties with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note. A Specially Serviced Mortgage Loan shall
cease to be a Specially Serviced Mortgage Loan from and after the date on which
the Special Servicer notifies the Master Servicer, the Operating Adviser 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 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), and with respect to
the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC, March 1, 2005.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
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"SUBORDINATE CERTIFICATES" means, collectively, the Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P and Class Q Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"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.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC
(including the 000 Xxxxxx Xxxxxx Pari Passu Loan and related assets), REMIC I
(including the Majority Mortgage Loans other than any Excess Interest), such
amounts related thereto as shall from time to time be held in the Certificate
Account, the Distribution Account, the Interest Reserve Account, the Insurance
Policies, any REO Properties or beneficial interests therein and other items
referred to in Section 2.1(a) hereof), REMIC II, REMIC III, the Excess Interest
Sub-account and any Excess Interest on the Mortgage Loans. The Trust shall not
include any Non-Serviced Companion Mortgage Loan, any B Note, any interest of
the holders of a B Note, any A/B Loan Custodial Account or any Serviced
Companion Mortgage Loan, any interest of the holders of a Serviced Companion
Mortgage Loan or any Serviced Companion Mortgage Loan Custodial Account.
"TRUSTEE" means Xxxxx Fargo 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.
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"TRUSTEE FEE RATE" means 0.0015% per annum.
"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, Bear
Xxxxxxx & Co. Inc. and Greenwich Capital Markets, Inc., or its successors in
interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to the Person that made the Advance
by the Trust Fund as part of a Workout-Delayed Reimbursement Amount pursuant to
subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class of Interests or Certificates (other than the Residual Certificates), the
portion of Distributable Certificate Interest for such Class remaining unpaid as
of the close of business on the preceding Distribution Date, plus one month's
interest thereon at the applicable Pass-Through Rate.
"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) prepared by the Master Servicer (combining reports in
such forms prepared by the Master Servicer and the Special Servicer (with
respect to Specially Serviced Mortgaged 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 Historical Liquidation Report,
(iv) an REO Status Report, (v) a CMSA Loan Level Reserve/LOC Report and (vi) an
Advance Recoverability Report.
"USAP" shall have the meaning set forth in Section 8.13.
"XXXXX REF PORTFOLIO COMPANION LOAN" means, collectively, the notes
secured by the Xxxxx REF Portfolio Pari Passu Mortgage on a pari passu basis
with the Xxxxx REF Portfolio Pari Passu Loan and which are not included in the
Trust. No Xxxxx REF Portfolio Companion Loan is a "Mortgage Loan."
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"XXXXX REF PORTFOLIO PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan Nos. 1-9 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the Xxxxx REF Portfolio Companion Loan
secured by the related Mortgaged Property pursuant to the Xxxxx REF Portfolio
Pari Passu Mortgage. The Xxxxx REF Portfolio Pari Passu Loan is a "Mortgage
Loan."
"XXXXX REF PORTFOLIO PARI PASSU MORTGAGE" means, the Mortgage securing
the Xxxxx REF Portfolio Companion Loan and the Xxxxx REF Portfolio Pari Passu
Loan and any other note secured by the related Mortgaged Property.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set forth in
subsection (II)(A) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y) the amount of
each collection of interest (other than default interest and any Excess
Interest) and principal received (including any Condemnation Proceeds received
and applied as a collection of such interest and principal) on such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Trustee 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 Trustee as supplied to the Trustee by the
Master Servicer. The Trustee 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 Trustee has actual knowledge of an error
in the calculations, the Trustee 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 in the definition of Liquidation Realized
Loss, any amounts (other than escrow and reserve deposits and reimbursements of
lender advances and expenses (excluding, for the avoidance of doubt, any
Liquidation Fee or Work-Out Fee) received in respect of a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B Note as to which a default has occurred
and is continuing shall be applied first to overdue interest due with respect to
such Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the
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Mortgage Rate thereof, next to current interest due with respect to such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the Mortgage Rate
thereof, next to the reduction of the Principal Balance of such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note to zero if such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note has been accelerated and in respect
of any scheduled payments of principal then due to the extent that such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note has not yet been accelerated,
next to any default interest and other amounts due on such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note and finally to Late Fees due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B Note. The
foregoing allocations are intended to govern loan level allocations but shall
not govern allocations of such amounts at the trust level for the purpose of
determining Principal Distribution Amounts or Distributable Certificate
Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(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:
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(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the 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 and
Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related
Maturity Date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest, provided that the Master Servicer's or the Special Servicer's
determination to waive the right to such accrued Excess Interest is in
accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case may be, will
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria..
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related Loan
Pair Intercreditor Agreement or the related Intercreditor Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no longer part of
the Trust Fund, the new holder of such Serviced Pari Passu Mortgage Loan or B
Note, as applicable, shall negotiate one or more new servicing agreements with
the 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.
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(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 by the applicable Seller
pursuant to Section 2.3, (ii) any purchase of the related A Note by the owner of
the related B Note pursuant to the terms of the related Intercreditor Agreement
and (iii) any payment in full of any and all amounts due (or deemed due) under
the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO
Mortgage Loan) (including amounts to which the holder of such A Note or Serviced
Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement
or related Loan Pair Intercreditor Agreement), as applicable; provided, however,
that this statement shall not limit (A) the duty of the 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 related Seller, but in
any event, without recourse, representation or warranty; provided that such
tender by the Trustee shall be conditioned upon its receipt from the 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 or the Trustee, as
applicable, primarily to the administration of the Trust Fund or any REMIC
formed hereunder or the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC or any grantor
trust or to any determination respecting the amount, payment
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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 or the 000
Xxxxxx Xxxxxx Pari Passu Loan REMIC, then such expense shall not be allocated
to, deducted or reimbursed from, or otherwise charged against the holder of any
Serviced Companion Mortgage Loan or B Note and such holder shall not suffer any
adverse consequences as a result of the payment of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, 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 and (v) all other assets included or to be included
in the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC or REMIC I for the benefit of
REMIC II and REMIC III or the Excess Interest Grantor Trust for the benefit of
the Class S Certificates. Such assignment includes all interest and principal
received or receivable on or with respect to the Mortgage Loans and due after
the Cut-Off Date. The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties to
constitute a sale. In connection with the initial sale of the Certificates by
the Depositor, the purchase price to be paid includes a portion attributable to
interest accruing on the Certificates from and after the Cut-Off Date. The
transfer and assignment of any Non-Serviced Mortgage Loan to the Trustee and the
right to service such Mortgage Loans are subject to the terms and conditions of
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement and the
related Non-Serviced Mortgage Loan Intercreditor Agreement, and the Trustee, by
the execution and delivery of this Agreement, hereby agrees that such Mortgage
Loans remain subject to the terms of each Non-Serviced Mortgage Loan
Intercreditor Agreement and, with respect to each Serviced Pari Passu Mortgage
Loan and Serviced Companion Mortgage Loan, each Loan Pair Intercreditor
Agreement.
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so
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assigned, endorsed to the Trustee as specified in clause (i) of the definition
of "Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, 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 applicable Seller shall, at the expense of such Seller as to
each of its respective Mortgage Loans, promptly (and in any event within 45 days
following the receipt thereof) cause to be submitted for recording or filing
(except with respect to any Mortgage that has been recorded in the name of MERS
or its designees), as the case may be, in the appropriate public office for real
property records or UCC financing statements, as appropriate, each assignment to
the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition
of "Mortgage File;" provided, if the related Mortgage and UCC financing
statements have been recorded in the name of MERS or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, each Seller has agreed in the applicable Mortgage Loan Purchase
Agreement to take all actions as are necessary to cause the Trustee to be shown
as, and the Trustee shall take all actions necessary to confirm that it is shown
as, the owner of the related Mortgage on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee following recording or filing; provided
that in those instances where the public recording office retains the original
Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC
financing statements, the applicable Seller shall obtain therefrom a certified
copy of the recorded original. The applicable Seller shall forward copies
thereof to the Trustee 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 applicable Seller shall, pursuant to the applicable Mortgage Loan Purchase
Agreement, promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the applicable Seller shall
upon receipt thereof cause the same to be duly recorded or filed, as
appropriate. After the applicable Seller has caused the Trustee to be identified
on the records of MERS as the owner of a Mortgage, it shall be the sole
responsibility of the Master Servicer to ensure that subsequent relevant events
relating to the Mortgage (as, for example, assumptions and partial releases) are
properly registered with MERS throughout the term of the related Mortgage Loan
for so long as the Mortgage Loan is an asset of the Trust.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit 5 to
the related Mortgage Loan Purchase Agreement in favor of the Trustee, the Master
Servicer and the Special Servicer to empower the Trustee and, in the event of
the failure or incapacity of the Trustee, the Master Servicer or the Special
Servicer, to submit for recording, at the expense of the applicable Seller, any
mortgage loan documents required to be recorded as described in the preceding
paragraph and any intervening assignments with evidence of recording thereon
that are required to be included in the Mortgage Files (so long as original
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counterparts have previously been delivered to the Trustee). The Sellers agree
to reasonably cooperate with the Trustee, the Master Servicer and the Special
Servicer in connection with any additional powers of attorney or revisions
thereto that are requested by such parties for purposes of such recordation. The
Trustee and each other party hereto agrees that no such power of attorney shall
be used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the related Seller, but in no event earlier than 18
months from the Closing Date, and (ii) the date (if any) on which such Mortgage
Loan becomes a Specially Serviced Mortgage Loan; provided, that the Trustee, the
Master Servicer and the Special Servicer may use such power of attorney to the
extent reasonably necessary in connection with any assumption, modification or
defeasanace of a Mortgage Loan. The Trustee shall submit such documents for
recording, at the related Seller's expense, after the periods set forth above;
provided, however, the Trustee shall not submit such assignments for recording
if the applicable Seller produces evidence that it has sent any such assignment
for recording and certifies that it is awaiting its return from the applicable
recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Master 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 on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer by the related Seller, the Servicer
Mortgage File, will include, to the extent required to be (and actually)
delivered to the applicable Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates (as
applicable), the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Delivery of any of the
foregoing documents to a sub-servicer shall be deemed delivery to the Master
Servicer and satisfy the Depositor's obligations under this Section 2.1(d). None
of the Master Servicer or the Special Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the MSMC Loans
from MSMC and the CWCapital Loans from CWCapital II. The Depositor will deliver
or cause to be delivered the original Mortgage Notes (or lost note affidavits
and indemnities with copies of the
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related Mortgage Notes, as described in the definition of "Mortgage File")
relating to the MSMC Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver or cause to be delivered the original Mortgage Notes (or lost note
affidavits and indemnities with copies of the related Mortgage Notes, as
described in the definition of "Mortgage File") relating to the CWCapital 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 and CWCapital II, as applicable, are required under the Mortgage
Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of
Assignments of Leases and assignments of UCC financing statements naming the
Trustee, on behalf of the Certificateholders, as assignee. Notwithstanding the
fact that the assignments shall name the Trustee, on behalf of the
Certificateholders, as the assignee, the parties hereto acknowledge and agree
that for all purposes the MSMC Loans shall be deemed to have been transferred
from MSMC to the Depositor, the CWCapital Loans shall be deemed to have been
transferred from CWCapital II 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
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, (iii) the REMIC I
Regular Interests, and (iv) the REMIC II Regular Interests, in each case, in
trust for the use and benefit of all present and future Certificateholders. To
the extent that the contents of the Mortgage File for any A Note relate to the
corresponding B Note, the Trustee, or the Custodian on the Trustee's behalf,
will also hold such Mortgage File in trust for the benefit of the holder of the
related B Note; provided, that if a B Note remains outstanding following payment
in full of the amounts due under the related A Notes, the Mortgage Loan
documents relating to such A/B Mortgage Loan (exclusive of any such documents
related solely to the A Notes) shall be assigned to the holder of the B Note or
its designee. To the extent that the contents of the Mortgage File for any
Serviced Pari Passu Mortgage Loan relate to the corresponding Serviced Companion
Mortgage Loan, the Trustee, or the Custodian, on the Trustee's behalf, will also
hold such Mortgage File in trust for the benefit of the holder of the related
Serviced Companion Mortgage Loan.
On the Closing Date in respect of the Initial Certification, and
within 90 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the 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
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of exceptions attached thereto, to the effect that: (A) (I) all documents
pursuant to clauses (i), (ii), (iv), (v), (vi), (viii), (x) and (xii) of the
definition of "Mortgage File" required to be included in the Mortgage File (to
the extent required to be delivered pursuant to this Agreement), and with
respect to all documents specified in the other clauses of the definition of
"Mortgage File" to the extent known by a Responsible Officer of the Trustee to
be required pursuant to this Agreement, are in its possession, and (II) for each
Mortgage recorded in the name of MERS or its designee, the Trustee is shown as
the transferee of the related Mortgage on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS, (B) such documents have been reviewed by it and have not
been materially mutilated, damaged, defaced, torn or otherwise physically
altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage
Note has been endorsed. Notwithstanding the foregoing, the delivery of a
commitment to issue a Title Insurance Policy in lieu of the delivery of the
actual Title Insurance Policy shall not be considered a Material Document Defect
with respect to any Mortgage File if such actual Title Insurance Policy is
delivered to the Trustee or a Custodian on its behalf not later than the 180th
day following the Closing Date.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of "Mortgage File," with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Adviser and each Seller, and if any recorded assignment
of Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees to use reasonable efforts to submit for recording any
unrecorded assignments of Mortgage that have been delivered to it (including
effecting such recordation process through or cooperating with the applicable
Seller), such recordation to be at the expense of the applicable Seller;
provided, however, that the Trustee shall not submit for recording any such
assignments if the applicable Seller produces evidence that it has sent any such
assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and
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(iii) the second anniversary of the Closing Date, and shall provide such updated
schedule of exceptions (which may be in electronic format) to each of the
Depositor, each Seller (as to its respective Mortgage Loans only), the Master
Servicer, the Special Servicer, the Operating Adviser, the Trustee 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 Trustee 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. 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 SELLERS'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 a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreement, and, in
either case, either (i) such defect or breach materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto, to the
Operating Adviser and to each Rating Agency subject to the terms of the
applicable Mortgage Loan Purchase Agreement. Promptly (but in any event within
three Business Days) upon becoming aware of any such Material Document Defect or
Material Breach, the Master Servicer shall, and the Special Servicer may,
request that the related Seller, not later than 90 days from such Seller's
receipt of the notice of such Material Document Defect or Material Breach, cure
such Material Document Defect or Material Breach, as the case may be, in all
material respects; provided, however, that if such Material Document Defect or
Material Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90-day period, and such Material Document Defect
or Material Breach would not cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code) but the related Seller is
diligently attempting to effect such correction or cure, as certified by such
Seller in an Officer's Certificate delivered to the Trustee, then the cure
period will be extended for an
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additional 90 days unless, solely in the case of a Material Document Defect, (x)
the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" and
(y) the Material Document Defect was identified in a certification delivered to
the applicable Seller by the Trustee pursuant to Section 2.2 not less than 90
days prior to the delivery of the notice of such Material Document Defect. The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to a Seller pursuant to Section 2.2 or otherwise nor possession of
such certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller of any Material Document Defect listed therein.
If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from the Trust at the applicable Purchase Price in accordance with the related
Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at the related Seller's option, without recourse (other than the
representations and warranties made with respect thereto), replace such Mortgage
Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such
Material Document Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, the repurchase must occur
within 85 days from the date the related Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
related Seller was notified of the defect or (ii) two years from the Closing
Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
related Seller has delivered to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1, and the Master
Servicer shall be entitled to rely on statements and certifications from the
Trustee for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The 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 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
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Mortgage File pertaining to any Qualifying Substitute Mortgage Loans, the
Trustee shall release the Trustee Mortgage File relating to such Deleted
Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if
necessary) shall execute and deliver such instruments of transfer or assignment
in the form presented to it, in each case without recourse, representation or
warranty, as shall be necessary to vest title (provided, however, if applicable,
the Master Servicer will take all necessary action to register the transfer of
ownership of the Mortgage related to such Deleted Mortgage Loan on the records
of MERS) (to the extent that such title was transferred to the Trustee or the
Depositor) in the related Seller or its designee to any Deleted Mortgage Loan
(including any property acquired in respect thereof or any insurance policy
proceeds relating thereto) substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such Crossed Mortgage Loans (without regard to this
paragraph), then the applicable document defect or breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Crossed Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such Crossed Mortgage Loan in accordance with the provisions above unless,
in the case of such breach or document defect, the Seller (A) provides a
Nondisqualification Opinion to the Trustee at the expense of the Seller and (B)
both of the following conditions would be satisfied if the related Seller were
to repurchase or replace only those Mortgage Loans as to which a Material Breach
or Material Document Defect had occurred without regard to this paragraph (the
"Affected Loan(s)"): (i) the Debt Service Coverage Ratio for all such other
Mortgage Loans (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than the lesser
of (A) 0.10x below the debt service coverage ratio for all such other Mortgage
Loans (including the Affected Loan(s)) set forth in Appendix II to the Final
Prospectus Supplement and (B) the debt service coverage ratio for all such
Crossed Mortgage Loans (including the Affected Loan(s)) for the four preceding
calendar quarters preceding the repurchase or replacement, and (ii) the
Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the greater of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for all such Crossed
Mortgage Loans (including the Affected Loan(s)) set forth in Appendix II to the
Final Prospectus Supplement plus 10% and (B) the loan-to-value ratio for all
such Crossed Mortgage Loans (including the Affected Loan(s)), at the time of
repurchase or replacement. The determination of the Master Servicer as to
whether the conditions set forth above have been satisfied shall be conclusive
and binding in the absence of manifest error. The Master Servicer will be
entitled to cause to be delivered, or direct the related Seller to (in which
case the related Seller shall) cause to be delivered to the Master Servicer, an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of the related Seller if the scope and
cost of the Appraisal is approved by the related Seller (such approval not to be
unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any
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Crossed Mortgage Loan, the applicable Seller and the Depositor have agreed in
the related Mortgage Loan Purchase Agreement to forbear from enforcing any
remedies against the other's Primary Collateral but each is permitted to
exercise remedies against the Primary Collateral securing its respective
Mortgage Loans, including with respect to the Trustee, the Primary Collateral
securing Mortgage Loans still held by the Trustee, so long as such exercise does
not impair the ability of the other party to exercise its remedies against its
Primary Collateral. If the exercise of remedies by one party would materially
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties have agreed to forbear from exercising such remedies
until the loan documents evidencing and securing the relevant Mortgage Loans can
be modified in a manner that complies with the applicable Mortgage Loan Purchase
Agreement to remove the threat of material impairment as a result of the
exercise of remedies. Any reserve or other cash collateral or letters of credit
securing the Crossed Mortgage Loans shall be allocated between such Mortgage
Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata
basis based upon their outstanding Principal Balances. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof. The Mortgagors set forth on Schedule VIII hereto are intended
third-party beneficiaries of the provisions set forth in this paragraph and the
preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (or with respect to any Non-Serviced Mortgage Loan, a copy thereof)
that appears to be regular on its face, unless there is included in the Mortgage
File a certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; (c) the absence from the Mortgage File of the item called
for by paragraph (viii) of the definition of "Mortgage File" (or with respect to
any Non-Serviced Mortgage Loan, a copy thereof). If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a), the
Master Servicer) will take the steps described elsewhere in this section,
including the giving of notices to the Rating Agencies, the parties hereto and,
to the extent any Material Document Defect relates to a Serviced Pari Passu
Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan, and
making demand upon the related Seller for the cure of the document defect or
repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing
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the repurchase claim. The related Seller has acknowledged and agreed under the
related Mortgage Loan Purchase Agreement that any modification of the Mortgage
Loan pursuant to a workout shall not constitute a defense to any repurchase
claim nor shall such modification and workout change the Purchase Price due from
the related Seller for any repurchase claim. In the event of any such
modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will comprise) a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the amount of such offer. Notwithstanding
anything to the contrary contained herein or in the related Mortgage Loan
Purchase Agreement, the right of any Option Holder to purchase such Mortgage
Loan shall be subject and subordinate to the Seller's right to purchase such
Mortgage Loan as described in the immediately preceding sentence. The related
Seller shall have five (5) Business Days to notify the Trustee or the Special
Servicer, as applicable, of its intent to so purchase the Mortgage Loan or
related REO Property from the date that it was notified of such intention to
exercise such Option or of such offer. The Special Servicer shall be obligated
to provide the related Seller with any appraisal or other third party reports
relating to the Mortgaged Property within its possession to enable the related
Seller to evaluate the related Mortgage Loan or REO Property. Any sale of the
related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the
related REO Property, to a Person other than the related Seller shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the related Seller and (ii) representation or warranty of any kind (either
expressed or implied) by the related Seller to or for the benefit of such
Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the related Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer shall notify the related Seller of the
discovery of the Material Document Defect or Material Breach and the related
Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction issues
a final order after the expiration of any applicable appeal period that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan (a "Final Judicial Determination")
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or the related Seller otherwise accepts liability, then, but in no event later
than the Termination of the Trust pursuant to Section 9.30 hereof, the related
Seller will be obligated to pay to the Trust the difference between any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Seller) and the Purchase Price.
In connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 2.3, the Special Servicer shall not
receive a Liquidation Fee in connection with such sale or other liquidation
until a final determination has been made, as set forth in the preceding
paragraph, as to whether the Seller is or was obligated to repurchase such
Mortgage Loan or REO Property. Upon such determination, the Special Servicer
shall be entitled to collect a Liquidation Fee (i) with respect to a
determination that the Seller is or was obligated to repurchase, based upon the
full Purchase Price of the related Mortgage Loan, including all related expenses
up to the date the remainder of such Purchase Price is actually paid, with such
Liquidation Fee payable by the Seller or (ii) with respect to a determination
that the Seller is not or was not obligated to repurchase (or the Trust decides
that it will no longer pursue a claim against the Seller for repurchase), based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan, with such amount to be paid from amounts in the Collection
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
Principal Balance of all such Qualifying Substitute Mortgage Loans as of the
date of substitution is less than the aggregate Principal Balance of all such
Deleted Mortgage Loans (in each case after application of scheduled principal
portion of the monthly payments received in the month of substitution). The
Depositor shall cause the related Seller to deposit the amount of such shortage
into the Certificate Account in the month of substitution, without any
reimbursement thereof. In addition, the Depositor shall cause the related Seller
to deposit into the Certificate Account, together with such shortage, if any, an
amount equal to interest on the Deleted Mortgage Loans at a rate equal to the
sum of the applicable Mortgage Rate from the Due Date as to which interest was
last paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee 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 related Seller, upon delivery
to each of them of a receipt executed by such Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed
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or assigned to the extent necessary or appropriate to the related Seller or its
designee in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee, but in any event, without recourse,
representation or warranty; provided that such tender by the Trustee shall be
conditioned upon its receipt from the 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 related 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 (i) MSMC, as Seller under the Mortgage
Loan Purchase Agreement I will be providing the remedies with respect to the
MSMC Loans and (ii) CWCapital LLC, as an additional signatory under the Mortgage
Loan Purchase Agreement II will be providing the remedies with respect to the
CWCapital 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.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer and the
Trustee (in its capacity as Trustee of the Trust) 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
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future materially and adversely affect (i) the ability of the Depositor to
perform its obligations under this Agreement or (ii) the business, operations,
financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the Majority Mortgage Loans and the 000
Xxxxxx Xxxxxx Pari Passu Loan in exchange for the REMIC I Regular Interests,
(ii) the REMIC I Regular Interests in exchange for the REMIC II Certificates,
(iii) the REMIC II Regular Interests in exchange for the REMIC III Certificates
and (iv) the right to receive Excess Interest in exchange for the Class S
Certificates.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE LOANS.
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the
document delivery requirements set forth herein will be satisfied by the
delivery by the applicable Seller of copies of each such document specified
herein (other than the Mortgage Note (and all intervening endorsements)
evidencing the Mortgage Loan, with respect to which the originals shall be
required); provided, the document delivery requirements for the Assignment of
Mortgage, any assignment of Assignment of Leases and any UCC-2 or UCC-3
financing statement set forth herein will be satisfied by the delivery by the
applicable Seller of copies of such documents made in favor of the trustee of
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
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(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the respective master
servicer, special servicer and trustee for the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and the other holders of the related
Non-Serviced Companion Loans, each stating that, among other things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the Closing Date.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates and Class A-J Certificates will be
issuable in denominations of $25,000 initial Certificate Balance and in any
whole dollar denomination in excess thereof. The Class X, 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 and Class Q 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
S, Class R-I, Class R-II, Class R-III and Class R-EA 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
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deliver such Certificates as in this Agreement provided and not otherwise. In
the event that additional Certificates need to be prepared at any time
subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class X, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P and Class Q Certificates
that are issued in book-entry form, on the Closing Date, the Authenticating
Agent upon the order of the Depositor shall authenticate Book-Entry Certificates
that are issued to a Clearing Agency or its nominee as provided in Section 3.7
against payment of the purchase price thereof. With respect to the Class J,
Class K, Class L, Class M, Class N, Class O, Class P and Class Q 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 Trustee shall be the initial Certificate
Registrar in respect of the Certificates and the Certificate Registrar shall
maintain books for the registration and for the transfer of Certificates (the
"Certificate Register"). The Certificate Registrar may resign or be discharged
or removed by the Trustee 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 Trustee and the appointment of a successor Trustee. 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
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of the Certificate Registrar duly endorsed or accompanied by a written
instrument of exchange duly executed by such Holder or such Holder's duly
authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with 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 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
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 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
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arrangement, including individual retirement accounts and annuities, Xxxxx plans
and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including, without limitation, insurance
company general accounts, that is subject to Title I of ERISA or Section 4975 of
the Code or any applicable federal, state or local law ("Similar Laws")
materially similar to the foregoing provisions of ERISA or the Code (each, a
"Plan"), (B) in book-entry form to an Institutional Accredited Investor who is
not also a Qualified Institutional Buyer or (C) to any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan, unless: (i)
in the case of a Non-Investment Grade Certificate that constitutes a Book-Entry
Certificate and is being sold to a Qualified Institutional Buyer, the purchase
and holding of such Certificate or interest therein qualifies for the exemptive
relief available under Sections I and III of U.S. Department of Labor Prohibited
Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate held as a Definitive Certificate, the
prospective Transferee provides the Certificate Registrar with a certification
of facts and an Opinion of Counsel which establish to the satisfaction of the
Certificate Registrar that such transfer will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code or subject the Depositor, the Trustee, the 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 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 Trustee 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.
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(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is a Qualified
Institutional Buyer, that it is not acquiring its Ownership Interest
in the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, that it is a United States Tax Person, that if
such Transferee is a partnership, trust or disregarded entity for U.S.
federal income tax purposes, then each Person that may be allocated
income from a Residual Certificate is a United States Tax Person, that
it is not a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any United States Tax
Person, that it has historically paid its debts as they have come due
and will continue to do so in the future, that it understands that its
tax liability with respect to the Residual Certificates may exceed
cash flows thereon and it intends to pay such taxes as they come due,
that it will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax treaty,
of such proposed Transferee or any other United States Tax Person,
that it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13 of
such Transfer Affidavit and Agreement are true or that Section 13 is
not applicable, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States Tax
Person, no Transfer of an Ownership Interest in a Residual Certificate
to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its 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
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establishment or fixed base, within the meaning of any applicable
income tax treaty, of any United States Tax Person or is a Person with
respect to which income on the Residual Certificate is attributable to
a foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Residual Certificate. None of the Trustee,
the Master Servicer, the Special Servicer or the Certificate Registrar
shall be under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
this Section 3.3(e) or for making any payments due on such Certificate
to the Holder thereof or for taking any other action with respect to
such Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, and to
the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice
to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such 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.
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The Master Servicer, on behalf of the Trustee, shall make available, upon
written request from the Trustee, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information in its possession or
reasonably available to it necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Residual Certificate to any Person
who is not a Permitted Transferee, including the information described in
Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to
the "excess inclusions" of such Residual Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Residual Certificate having as among its
record holders at any time any Person which is not a Permitted Transferee. The
Person holding such Ownership Interest shall be responsible for the reasonable
compensation of the Master Servicer and the Trustee 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
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 of the 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC, REMIC I, REMIC II or REMIC III to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the Transfer
of any Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective Transferee to
be subject to a tax caused by the Transfer of a Residual Certificate
to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee 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
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Certificate Registrar shall have no liability for transfers (including without
limitation transfers made through the book-entry facilities of the Depository or
between or among Participants or Certificate Owners) made in violation of
applicable restrictions, provided that the Certificate Registrar has satisfied
its duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master 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 and any agent of the Master
Servicer, the Special Servicer, 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 Operating Adviser
nor any agent of the Master Servicer, the
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Special Servicer, the Trustee or the Operating Adviser shall be affected by any
notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, 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 Trustee or the Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-J, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
Q 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 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
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(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class E, Class F, Class G, Class H and Class J Certificates sold to
Institutional Accredited Investors shall be represented by the Rule 144A-IAI
Global Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class K, Class L, Class M, Class N, Class
O, Class P and Class Q 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
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Distribution Date that has previously delivered a Regulation S Certificate to
Euroclear Bank or Clearstream Bank with respect to its interest therein does not
need to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear Bank or Clearstream Bank, as
applicable, thereof). Euroclear Bank or Clearstream Bank, as applicable, shall
be required to promptly deliver to the Certificate Registrar a certificate
substantially in the form of Exhibit I hereto to the effect that it has received
the requisite Regulation S Certificates for each such Class, and no Certificate
Owner (or transferee from any such Certificate Owner) shall be entitled to
receive an interest in the Regulation S Permanent Global Certificate for such
Class or any payment or principal or interest with respect to its interest in
such Regulation S Temporary Global Certificate prior to the Certificate
Registrar receiving such certification from Euroclear Bank or Clearstream Bank
with respect to the portion of the Regulation S Temporary Global Certificate
owned by such Certificate Owner (and, with respect to an interest in the
applicable Regulation S Permanent Global Certificate, prior to the Release
Date). After the Release Date, distributions due with respect to any beneficial
interest in a Regulation S Temporary Global Certificate shall not be made to the
holders of such beneficial interests unless exchange for a beneficial interest
in the related Regulation S Permanent Global Certificate is improperly withheld
or refused. No interest in a Regulation S Global Certificate may be held by or
transferred to a U.S. Person (as defined in Regulation S) except for exchanges
for a beneficial interest in the Rule 144A-IAI Global Certificate for such Class
as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only 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 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
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addition to those under this Agreement and, if applicable, those of Euroclear
Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the
form of an Exchange Certification (substantially in the form of Exhibit H
attached hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable,
in the form of an Exchange Certification, to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for an
equivalent interest in the Regulation S Global Certificate for such Class in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in such Regulation S Global Certificate as
described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
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 Trustee 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
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the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master 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 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 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 Trustee 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 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 P&I Advance if the Special
Servicer has
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determined in accordance with the Servicing Standard that such P&I Advance if
made would be a Nonrecoverable Advance and has directed the Master Servicer not
to make such P&I Advance; provided that the Special Servicer shall be under no
obligation to make such determination. Such determination shall be conclusive
and binding on the Trustee and the Certificateholders. The Special Servicer
shall not make P&I Advances under this Agreement. 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 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 Trustee
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 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 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.
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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. 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. 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 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;
provided that the Special Servicer shall be under no obligation to make such
determination. 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 of the related B Note and, in the case of
any Serviced Pari Passu Mortgage Loan, the holder of the related Serviced
Companion Mortgage Loan. Notwithstanding any other provision of this Agreement,
the Special Servicer shall not be required to make Servicing Advances under this
Agreement but may make such Servicing Advances at its option in which event the
Master Servicer shall reimburse the Special Servicer for such Servicing Advance
with interest thereon at the Advance Rate within 20 days of receipt of a
statement therefor and, upon such reimbursement, the Master Servicer shall be
deemed to have made such Servicing Advance at the same time the Special Servicer
made such Servicing Advance and shall be entitled to reimbursement therefor
pursuant to Section 5.2. The 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.
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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 not have any obligation 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 unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance.
(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 determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly, but in any event, not later
than five Business Days after notice thereof in accordance with Section 4.2,
unless the Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
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 (in the case of any such determination by the Special Servicer),
the Special Servicer (in the case of any such determination by the Master
Servicer), the Operating Adviser and the Rating Agencies (and the holder of the
Serviced Companion Mortgage Loan if the Advance relates to a Loan Pair) 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 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 (provided, that the
Special Servicer shall have no obligation to make such determination), such
determination shall be evidenced by an Officer's
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Certificate of a Responsible Officer of the Special Servicer, delivered to the
Depositor, the Master Servicer, the Trustee and the Operating Adviser similar to
the Officer's Certificate of the Master Servicer described above. For the
avoidance of doubt, the Special Servicer shall not have any right to revise any
nonrecoverability determination that may have been made by the Master Servicer
or the Trustee. Each of the Master Servicer and the Trustee shall be entitled to
rely on any nonrecoverability determination that is made by the Special Servicer
as aforesaid. 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 it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be a
Nonrecoverable Advance. The Master Servicer's or the Special Servicer's
determination in accordance with the above provisions shall be conclusive and
binding on the Trustee and the Certificateholders. The Master Servicer shall
consider Unliquidated Advances in respect of prior P&I Advances and Servicing
Advances as outstanding Advances for purposes of nonrecoverablility
determinations as if such Unliquidated Advance were a P&I Advance or Servicing
Advance, as applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee, as applicable, shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable Advances pursuant to and to the extent set forth
in the related Non-Serviced Mortgage Loan Intercreditor Agreement (with, in each
case, any accrued and unpaid interest thereon provided for under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the manner set
forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from 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
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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 Mortgagor in an amount sufficient
to pay Advance Interest. 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 on the date of a
Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan, as to
which the Special Servicer shall retain Late Fees and default interest with
respect to such Specially Serviced Mortgage Loan, subject to the offsets set
forth below) as additional servicing compensation only to the extent such Late
Fees and default interest exceed Advance Interest accrued or previously paid
with respect to the related Mortgage Loans. The 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 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 and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, Serviced
Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loan or REO
Property (including Advances later determined to be Nonrecoverable Advances) and
Advance Interest thereon shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances and Advance Interest thereon pursuant to Section 5.2
collected in any Collection Period with respect to Mortgage Loans, any Serviced
Companion Mortgage Loan or any B Note or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any Serviced Companion Mortgage Loan, any B Note, any Specially Serviced
Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement
Amount with respect to any Determination Date shall be applied to reimburse (i)
the 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 for
any Advances outstanding to the Master Servicer with respect to any of such
Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced
Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the
Master Servicer with respect to such Advances and then (iii) the Special
Servicer for any Advances outstanding to the Special Servicer with respect to
any of such Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Special Servicer with respect to such Advances. To the extent that any
Advance Interest payable to the 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
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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 5.3(b)(ii). The Master Servicer's, the Special Servicer's, and
the Trustee's right of reimbursement under this Agreement for Advances shall be
prior to the rights of the Certificateholders (and, in the case of a Serviced
Companion Mortgage Loan, the holder thereof 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 with
respect to the related Mortgage Loan during the Collection Period during which
the related Advance is reimbursed, and then from Excess Liquidation Proceeds
then available prior to payment from any other amounts. Late Fees and default
interest will be applied on a "loan-by-loan basis" (under which Late Fees and
default interest will be offset against the Advance Interest arising only from
that particular Mortgage Loan) to the payment of Advance Interest on all
Advances then being reimbursed or previously paid. Advance Interest payable to
the 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 reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. With
respect to each Collection Period, the Special Servicer shall deliver such
invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing Advance.
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 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 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).
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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 "Midland Loan Services, Inc., as Master Servicer for Xxxxx Fargo Bank,
National Association., as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5" (the
"Certificate Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account, the Master Servicer shall give to 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 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 Sub-Servicer's) right to direct payments and investments and
its rights of withdrawal under this Agreement.
(c) 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 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 and (II) 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)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof, on the Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note;
(B) Interest: all payments on account of interest on the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note (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;
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(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note;
(D) Insurance Proceeds: all Insurance Proceeds (and other
insurance proceeds payable to a B Note) 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 (and other
condemnation proceeds payable to a B Note) 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) 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
described in the fifth paragraph of Section 2.3(a)) paid by a Seller
in connection with the substitution of any Qualifying Substitute
Mortgage Loans, payments or recoveries in respect of Unliquidated
Advances or in respect of Nonrecoverable Advances paid from principal
collections on the Mortgage Loan pursuant Section 5.2(a)(II), any
other amounts received with respect to any Serviced Companion Mortgage
Loan and with respect to any B Note, all other amounts received
pursuant to the cure and purchase rights set forth in the applicable
Intercreditor Agreement; and
(J) to the extent not otherwise set forth above, all amounts
received from each Non-Serviced Mortgage Loan Master Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage
Loan Trustee pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account (each
an "A/B Loan Custodial
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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 on the Master Servicer Remittance Date, remit to the Trustee for deposit
in the Interest Reserve Account in respect of each Interest Reserve Loan, an
amount equal to one day's interest at the related REMIC I Net Mortgage Rate
(without any conversion to a 30/360 basis as provided in the definition thereof)
on the Scheduled Principal Balance of such Mortgage Loan as of the Due Date in
the month in which such Distribution Date occurs, to the extent a Scheduled
Payment or P&I Advance is timely made in respect thereof for such Due Date (all
amounts so deposited in any consecutive January and February in respect of each
Interest Reserve Loan, the "Interest Reserve Amount"). For purposes of
determining amounts to be so remitted to he Trustee, the REMIC I Net Mortgage
Rate used in this calculation for those months will be calculated without regard
to any adjustment for Interest Reserve Amounts or the interest accrual basis as
described in the proviso to the definition of "REMIC I Net Mortgage Rate."
(e) Funds in the Certificate Account (including any A/B Loan Custodial
Accounts and Serviced Companion Mortgage Loan Custodial Accounts) may be
invested and, if invested, shall be invested by, and at the risk of, the 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 "Xxxxx
Fargo Bank, National Association., as Trustee for the Holders of the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-HQ5 and the holder of any related Serviced Companion Mortgage Loan or B
Note as their interests may appear." None of the Depositor, the Special
Servicer, the Mortgagors 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
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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), 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 or any Serviced Companion Mortgage Loan Custodial Account, as
the case may be, any amount not required to be deposited therein or transferred
thereto, it may at any time withdraw such amount or retransfer such amount from
the Certificate Account, such A/B Loan Custodial Account or such Serviced
Companion Mortgage Loan Custodial Account, as the case may be, any provision
herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the 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 or the related A/B Loan Custodial Account, as
applicable, an amount equal to all amounts due under any such Eligible
Investment (net of anticipated income or earnings thereon that would have been
payable to the 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. Within 20 days following the
first anniversary of the Closing Date, the Master Servicer shall deliver to the
Trustee 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 XVIII, 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
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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 Trustee from time to time of amounts payable to 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; 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 Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans, Modification Fees relating to Mortgage Loans, Serviced Companion
Mortgage Loans or B Notes which are not Specially Serviced Mortgage Loans as
provided in Section 8.18, 50% of any assumption fees payable under Section
8.7(a) or 8.7(b), 100% of any extension fees payable under Section 8.10 or other
fees payable to the Master Servicer hereunder and (B) directly to the Special
Servicer, 50% of any assumption fees as provided in Section 8.7(a), 50% of any
assumption fees as provided in Section 8.7(b), all assumption fees relating to
Specially Serviced Mortgage Loans, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by the applicable Mortgagor, and Late Fees and default
interest collected on any Specially Serviced Mortgage Loan in excess of Advance
Interest payable to the Master Servicer or the Trustee in respect of such
Specially Serviced Mortgage Loan (which Advance Interest the Master Servicer
shall retain or pay to the Trustee to the extent provided for in this Agreement)
to the extent the Special Servicer is entitled to such Late Fees and default
interest under Section 4.5;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, 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
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accordance with Section 4.4 that any Advance is a Nonrecoverable Advance,
Servicing Advances on the related Mortgage Loan, Serviced Companion Mortgage
Loan or B Note, as applicable, from payments made by the related Mortgagor of
the amounts to which a Servicing Advance relates or from REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a Servicing
Advance has been or is being reimbursed, any related Advance Interest thereon
first, from Late Fees and default interest collected with respect to the related
Mortgage Loan during the Collection Period during which such Advance is
reimbursed, and then from Excess Liquidation Proceeds then available and then
from any other amounts on deposit in the Certificate Account; provided that,
Late Fees and default interest will be applied on a "loan-by-loan basis" (under
which Late Fees and default interest will be offset against the Advance Interest
arising only from the particular Mortgage Loan) to the payment of Advance
Interest on all Advances on such Mortgage Loan (and any Serviced Companion
Mortgage Loan and B Notes) then being reimbursed or (y) after a Final Recovery
Determination or determination that any Servicing Advance on the related
Mortgage Loan, Serviced Companion Mortgage Loan or B Note is a Nonrecoverable
Advance, any Servicing Advances made on the related Mortgage Loan, related
Serviced Companion Mortgage Loan, related B Note or REO Property from any funds
on deposit in the Certificate Account (regardless of whether such amount was
recovered from the applicable Mortgage Loan, Serviced Companion Mortgage Loan, B
Note or REO Property) and pay Advance Interest thereon first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed (applying such Late Fees and default interest on a
"loan-by-loan basis", as described above, for all Mortgage Loans to the payment
of Advance Interest on all Advances on such Mortgage Loans (and any Serviced
Companion Mortgage Loans and B Notes) then being reimbursed or previously paid),
then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in 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 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 with respect to the related Mortgage Loan during the
Collection Period during which such Advance is reimbursed, and then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in the Certificate Account; provided that, Late Fees and default interest will
be applied on a "loan-by-loan basis" (under which Late Fees and default interest
will be offset against the Advance Interest arising only from the particular
Mortgage Loan) to the payment of Advance Interest on all Advances on such
Mortgage Loan then being reimbursed or previously paid or (y) if after a Final
Recovery Determination or determination in accordance with Section 4.4 that any
P&I
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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 with respect to the related
Mortgage Loan during the Collection Period during which such Advance is
reimbursed (applying such Late Fees and default interest on a "loan-by-loan
basis", as described above, for all Mortgage Loans to the payment of Advance
Interest on all Advances on such Mortgage Loans then being reimbursed or
previously paid), then from Excess Liquidation Proceeds then available and then
from any other amounts on deposit in 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 and to pay to the parties entitled thereto the Excess Servicing
Fees (to the extent not previously retained by any of such parties);
(v) Trustee Fee: to pay to the Distribution Account for
withdrawal by the Trustee, the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set forth
herein or in the definition thereof), the payment of which is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: 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 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
(excluding any Excess
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Interest) and of the amounts described in Section 5.1(d) in respect of Interest
Reserve Amounts to the Distribution Account (or in the case of any Excess
Interest, deposit to the Excess Interest Sub-account under Section 5.3(b)) other
than amounts held for payment in future periods or pursuant to clause (xii)
below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
(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
related 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 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 described in clauses (A) and/or (B)
above), to the extent that the holder of such B Note is entitled
thereto under the related Intercreditor Agreement (including by way of
the operation of any provision of the related Intercreditor Agreement
that entitles the holder of such B Note to reimbursement of cure
payments made by it).
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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, one (1) Business Day after the related
Determination Date, remit to the holder of the related Serviced
Companion Mortgage Loan all amounts on deposit in such related
Serviced Companion Mortgage Loan Custodial Account (net of amounts
permitted or required to be transferred therefrom as described in
clauses (A) and/or (B) above), to the extent that the holder of such
Serviced Companion Mortgage Loan is entitled thereto under the related
Loan Pair Intercreditor Agreement.
No decision by the 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
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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" 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
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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 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.
(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
to reimbursement for any Nonrecoverable Advance (or payment of Advance
Interest thereon from a source other than Late Fees and default
interest on the related Mortgage Loan) during any Collection Period,
then, notwithstanding any contrary provision of subsection (I) above,
(a) to the extent that one or more such reimbursements and payments of
Nonrecoverable Advances (and such Advance Interest thereon) are made,
such reimbursements and payments shall be made, first, from the
aggregate amount in the Collection Account allocable to principal
received with respect to the Mortgage Loans for such Collection Period
contemplated by clause (I)(A) of the definition of Principal
Distribution Amount (but not including any such amounts that
constitute Advances, and prior to any deduction for Workout-Delayed
Reimbursement Amounts (and Advance Interest thereon) that were
reimbursed or paid during the related Collection Period from amounts
allocable to principal received with respect to the Mortgage Loans, as
described by clause (II)(A) of the definition of Principal
Distribution Amount and pursuant to subsection (iii) of Section
5.2(a)(II)), and then from other collections (including interest) on
the Mortgage Loans for such Collection Period, provided, that if
interest is used to reimburse such Nonrecoverable Advances, the party
entitled to such reimbursement shall notify the Rating Agencies at
least fifteen (15) days prior to such reimbursement, unless
circumstances exist that are
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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 (and 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, to abstain from
reimbursing itself (notwithstanding that it is entitled to such
reimbursement) during that Collection Period for all or a portion of
such Nonrecoverable Advance (and Advance Interest thereon), provided
that the aggregate amount that is deferred with respect to all
Nonrecoverable Advances (and Advance Interest thereon) with respect to
all Mortgage Loans for any particular Collection Period is less than
or equal to such excess described above in this clause (b). If the
Master 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 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 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.
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 or the Trustee shall have any
liability whatsoever for making an election, or refraining from making an
election, that is authorized under this subsection (II)(iv). The foregoing
shall not, however, be construed to limit any liability that may otherwise
be imposed on such Person for any failure by such Person to comply with the
conditions to making such an election under this subsection (II)(iv) or to
comply with the terms of this subsection (II)(iv) and the other provisions
of this Agreement that apply once such an election, if any, has been made.
Any election by the Master 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 (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 (or the Trustee) to otherwise be
reimbursed for such Nonrecoverable Advance (and Advance Interest thereon).
Any election by the Master Servicer or the Trustee to abstain from
reimbursing itself for any Nonrecoverable
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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 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 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
XVIII, 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
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
XVIII. The Master Servicer shall 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 Trustee and the Trustee 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 Trustee shall be
liable or held responsible for any resulting delay or failure in the making of
such distribution to Certificateholders or for any interest shortfall resulting
from such a delay or failure. For purposes of the definition of "Available
Distribution Amount" and "Principal Distribution Amount," (i) the Scheduled
Payments relating to the Mortgage Loans set
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forth on Schedule XVIII 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 XVIII received after the end of the
related Collection Period but prior to the Master Servicer Remittance Date shall
each be deemed to have been collected in the prior Collection Period, in each
such case, to the extent that the Master Servicer remits those payments within
the time frames contemplated above for such Collection Period.
SECTION 5.3 DISTRIBUTION ACCOUNT, RESERVE ACCOUNT AND INTEREST RESERVE
ACCOUNT
(a) The Trustee shall establish (with respect to clause (i) and (iii),
on or prior to the Closing Date, and with respect to clause (ii), on or prior to
the date the Trustee determines is necessary) and maintain in its name, (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 Trustee, in trust for the benefit of the
Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5, Distribution Account," (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association., as Trustee, in trust for the
benefit of the Holders of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ5, Reserve Account," and (iii) an
account (the "Interest Reserve Account") 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 Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5".
The Distribution Account, the Reserve Account and the Interest Reserve Account
shall be Eligible Accounts. Funds in the Reserve Account shall not be invested.
The Distribution Account and Reserve Account shall be held separate and apart
from and shall not be commingled with any other monies including, without
limitation, other monies of the Trustee held under this Agreement. The Interest
Reserve Acount may be a sub-account of the Distribution Account.
Funds in the Distribution Account and the Interest Reserve Account may
be invested and, if invested, shall be invested by, and at the risk of, the
Trustee in Eligible Investments selected by the Trustee which shall mature,
unless payable on demand, not later than such time on the Distribution Date
which will allow the Trustee to make withdrawals from the Distribution Account
under Section 5.3(b), and any such Eligible Investment shall not be sold or
disposed of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "Xxxxx Fargo Bank, National
Association, as Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and the holder of
any related B Note as their interests may appear." None of the Depositor, the
Mortgagors, the Special Servicer or the Master Servicer 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 Trustee 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 Trustee which shall deposit the amount of such loss (to the extent
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not offset by income from other investments) in the Distribution Account or
Interest Reserve Account, as the case may be, out of its own funds immediately
as realized. If the Trustee deposits in or transfers to the Distribution Account
or Interest Reserve Account, as the case may be, any amount not required to be
deposited therein or transferred thereto, it may at any time withdraw such
amount or retransfer such amount from the Distribution Account or Interest
Reserve Account, as the case may be, any provision herein to the contrary
notwithstanding.
(b) The Trustee shall deposit into the Distribution Account or
Interest 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 and all Excess Liquidation
Proceeds. The Trustee shall deposit amounts constituting collections of Excess
Interest on the Majority 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.
The Trustee shall make withdrawals from the Distribution Account (including the
Excess Interest Sub-account) and the Reserve Account only for the following
purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the
Special Servicer, and the Trustee (including the Trustee's Fee, or other
expenses or other amounts permitted to be paid hereunder and not previously paid
to such Persons pursuant to Section 5.2);
(iii) to make distributions to the Certificateholders pursuant to
Section 6.5; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On each Distribution Date in March of every year commencing in
March 2006, the Trustee shall withdraw all amounts then in the Interest Reserve
Account and deposit such amounts into the Distribution Account.
SECTION 5.4 TRUSTEE REPORTS.
(a) 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 Trustee by the Master Servicer (no later than 1:00
p.m., New York time on the Report Date), the Trustee shall make available to any
interested party (including the holder of a B Note, but only with respect to the
related A/B Mortgage Loan) via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx" (the "Trustee'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
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Certificateholders Report, (iii) the Loan Periodic Update File, Loan Setup File,
Bond Level File and the Collateral Summary File, (iv) the Advance Recoverability
Report, (v) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (vi) as a convenience for
interested parties (and not in furtherance of the distribution thereof under the
securities laws), the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Trustee in accordance herewith, the
Trustee shall make available via the Trustee's Website, on a restricted basis,
the Restricted Servicer Reports (including the Property File on or prior to each
Distribution Date, commencing in April 2005). The Trustee shall provide access
to the Restricted Servicer Reports, upon request, to each Certificateholder, to
the holder of a B Note as applicable, 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
Trustee services, Certificateholders or any party hereto may initially call
000-000-0000.
The Trustee makes no representations or warranties as to the accuracy
or completeness of any report, document or other information made available on
the Trustee's Website and assumes no responsibility therefor. The Trustee 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 Trustee may disclaim responsibility for any information
distributed by the Trustee for which it is not the original source. In
connection with providing access to the Trustee's Website, the Trustee, may
require registration and the acceptance of a disclaimer. None of the Master
Servicer, the Special Servicer or the Trustee shall be liable for the
dissemination of information in accordance with this Agreement; provided that
this sentence shall not in any way limit the liability the Trustee 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 Trustee 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 Trustee shall be
entitled to be reimbursed by such Certificateholder (or such holder of a
Serviced Companion Mortgage Loan or B Note) for the Trustee'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.
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(c) Upon written request, the Trustee shall send to each Person who at
any time during the calendar year was a Certificateholder of record, customary
information as the Trustee xxxxx xxx be necessary or desirable for such Holders
to prepare their federal income tax returns.
(d) Reserved
(e) The Trustee shall afford the Rating Agencies, the Financial Market
Publishers, the Depositor, the Master Servicer, the Special Servicer, the
Operating Adviser, any Certificateholder, the holder of a B Note (with respect
to the related A/B Mortgage Loan), the Luxembourg Paying Agent, prospective
Certificate Owner or any Person reasonably designated by any Placement Agent, or
any Underwriter upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney privileged 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 Trustee.
(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 Trustee upon request; provided, however, that the Trustee shall be
permitted to require payment by the requesting party (other than the Depositor,
the Master Servicer, the Special Servicer, the Operating Adviser, the holder of
a B Note, any Placement Agent or any Underwriter or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Trustee of
providing access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(g) The Trustee 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 Trustee 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 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 TRUSTEE TAX REPORTS. The Trustee shall perform all
reporting and other tax compliance duties that are the responsibility of each
REMIC Pool and the Excess Interest Grantor Trust under the Code, REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Trustee 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, Class R-III or Class R-EA Certificate, to
a Disqualified Organization or to an agent that has acquired a Class R-I, Class
R-II, Class R-III or Class R-EA Certificate on behalf
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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,
Class R-III or Class R-EA 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 Trustee with such information concerning the
Mortgage Loans as is necessary for the preparation of the tax or information
returns or receipts of each REMIC Pool and the Excess Interest Grantor Trust as
the Trustee 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 Trustee
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),
respecting the final distribution on the Certificates, on each Distribution
Date, the Trustee 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 at the written direction of the
Master Servicer, withdraw from the Distribution Account and pay to the Master
Servicer and Special Servicer any unpaid servicing compensation or other amounts
currently required to be paid pursuant to this Agreement (to the extent not
previously retained or withdrawn by 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 Trustee on or prior to the
related Record Date (or upon standing instructions given to the Trustee on the
Closing Date prior to any Record Date, which instructions may be revoked at any
time thereafter upon written notice to the Trustee 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 Trustee 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 Trustee in a notice delivered to
Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
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SECTION 6.1A 000 XXXXXX XXXXXX PARI PASSU LOAN REMIC.
On each Distribution Date, the Trustee shall be deemed to distribute
to itself, as holder of the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interest, for the following purposes and in the following order of priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect to the
000 Xxxxxx Xxxxxx Pari Passu Loan or related REO Property, Distributable
Certificate Interest to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
the 000 Xxxxxx Xxxxxx Pari Passu Loan or related REO Property, principal to the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, until the Certificate
Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interest, plus interest on such Realized Losses previously allocated thereto, at
the applicable Pass-Through Rate; and
(iv) thereafter, to the Class R-EA Certificateholders with
respect to the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Residual Interest at such
time as the Certificate Balance of the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC
Regular Interest has been reduced to zero, and Realized Losses previously
allocated thereto have been reimbursed to the Holder of the 000 Xxxxxx Xxxxxx
Passu Loan REMIC Regular Interest, any amounts remaining.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, 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 Majority Mortgage Loan or related REO
Property and the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest,
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 Majority Mortgage Loan or related REO Property and the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC Regular Interest, principal to the Corresponding REMIC I
Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on such
Realized Losses previously allocated thereto, at the applicable Pass-Through
Rates; and
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(iv) thereafter, to the Class R-I Certificateholders at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests have been
reduced to zero, and Realized Losses previously allocated thereto have been
reimbursed to the Holders of the REMIC I Regular Interests, any amounts
remaining.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Trustee shall be deemed to
distribute to itself, as holder of the REMIC II Regular Interests, for the
following purposes and in the following order of priority:
(i) an amount equal to the aggregate Distributable Certificate
Interest for the Class A Senior Certificates and the Class X Certificates, to
each REMIC II Regular Interest, divided among the REMIC II Regular Interests in
proportion to (A) in the case of each of REMIC II Regular Interest A-1A, REMIC
II Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C,
REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular
Interest A-ABA, REMIC II Regular Interest A-ABB, REMIC II Regular Interest A-4A,
REMIC II Regular Interest A-4B and REMIC II Regular Interest A-4C, the Accrued
Certificate Interest for such Interest for such Distribution Date, and (B) in
the case of each of the remaining REMIC II Regular Interests, the product of (a)
the Certificate Balance of such Interest and (b) one-twelfth of the sum of the
Class X-1 Strip Rate for such Interest and the related Class X-2 Strip Rate (if
any) for such Interest;
(ii) to REMIC II Regular Interest A-1A, REMIC II Regular Interest
A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest A-2A, REMIC II
Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest
A-3A, REMIC II Regular Interest A-3B, REMIC II Regular Interest A-ABA, REMIC II
Regular Interest A-ABB, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, in reduction of the Certificate
Balances thereof, in an amount in the aggregate up to the Principal Distribution
Amount for such Distribution Date, in the following order: (A) to REMIC II
Regular Interest A-1A, until the Certificate Balance thereof is reduced to zero;
(B) to REMIC II Regular Interest A-1B, until the Certificate Balance thereof has
been reduced to zero; (C) to REMIC II Regular Interest A-1C, until the
Certificate Balance thereof has been reduced to zero; (D) to REMIC II Regular
Interest A-2A, until the Certificate Balance thereof has been reduced to zero;
(E) to REMIC II Regular Interest A-2B, until the Certificate Balance thereof has
been reduced to zero; (F) to REMIC II Regular Interest A-2C, until the
Certificate Balance thereof has been reduced to zero; (G) to REMIC II Regular
Interest A-3A, until the Certificate Balance thereof has been reduced to zero;
(G) to REMIC II Regular Interest A-3B, until the Certificate Balance thereof has
been reduced to zero; (H) to REMIC II Regular Interest A-ABA, until the
Certificate Balance thereof has been reduced to zero; (I) to REMIC II Regular
Interest A-ABB, until the Certificate Balance thereof has been reduced to zero;
(J) to REMIC II Regular Interest A-4A, until the Certificate Balance thereof has
been reduced to zero; (K) to REMIC II Regular Interest A-4B, until the
Certificate Balance thereof has been reduced to zero; (L) to REMIC II Regular
Interest A-4C, until the Certificate Balance thereof has been reduced to zero;
(iii) to each REMIC II Regular Interest, pro rata on the basis of
their respective entitlements to reimbursement described in this clause (iii),
to reimburse any Realized
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Losses previously allocated to each such Interest, but in the case of all such
Interests other than REMIC II Regular Interest A-1A, REMIC II Regular Interest
A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C,
REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular
Interest A-ABA, REMIC II Regular Interest A-ABB, REMIC II Regular Interest A-4A,
REMIC II Regular Interest A-4B, REMIC II Regular Interest A-4C, only as a result
of the allocation of Realized Losses to the Class X Certificates, and in the
case of all such Interests, inclusive of accrued and unpaid interest at the
applicable Pass-Through Rate on such Realized Losses;
(iv) to REMIC II Regular Interest A-J, the remainder of the
Distributable Certificate Interest for such Interests for such Distribution
Date, to the extent not distributed pursuant to clause (i) above;
(v) to REMIC II Regular Interest A-J, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed on such Distribution Date pursuant to the preceding provisions
hereof), until the Certificate Balance thereof has been reduced to zero;
(vi) to REMIC II Regular Interest A-J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(vii) to each of REMIC II Regular Interest B-1 and REMIC II
Regular Interest B-2, the remainder of Distributable Certificate Interest for
each such Interest for such Distribution Date, to the extent not deemed to be
distributed pursuant to clause (i) above, divided among such Interests in
proportion to their Accrued Certificate Interests for such Distribution Date;
(viii) to REMIC II Regular Interest B-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero, and upon payment in full thereof, to REMIC II Regular Interest B-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed on such Distribution Date pursuant to the
preceding provisions hereof), until the Certificate Balance thereof has been
reduced to zero;
(ix) to REMIC II Regular Interest B-1 and REMIC II Regular
Interest B-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(x) to each of REMIC II Regular Interest C-1 and REMIC II Regular
Interest C-2, the remainder of Distributable Certificate Interest for each such
Interest for such Distribution Date, to the extent not previously deemed
distributed on such Distribution Date pursuant to clause (i) above, divided
among such Interests in proportion to their Accrued Certificate Interests for
such Distribution Date;
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(xi) to REMIC II Regular Interest C-1, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed on such Distribution Date pursuant to the preceding provisions
hereof), until the Certificate Balance thereof has been reduced to zero, and
upon payment in full thereof, to REMIC II Regular Interest C-2, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero;
(xii) to REMIC II Regular Interest C-1 and REMIC II Regular
Interest C-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(xiii) to each of REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2, the remainder of Distributable Certificate Interest for
each such Interest for such Distribution Date, to the extent not previously
deemed distributed on such Distribution Date pursuant to clause (i) above,
divided among such Interests in proportion to their Accrued Certificate
Interests for such Distribution Date;
(xiv) to REMIC II Regular Interest D-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero, and upon payment in full thereof, to REMIC II Regular Interest D-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed on such Distribution Date pursuant to the
preceding provisions hereof), until the Certificate Balance thereof has been
reduced to zero;
(xv) to REMIC II Regular Interest D-1 and REMIC II Regular
Interest D-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(xvi) to each of REMIC II Regular Interest E-1 and REMIC II
Regular Interest E-2, the remainder of the Distributable Certificate Interest
for each such Interests for such Distribution Date, to the extent not
distributed pursuant to clause (i) above, divided among such Interests in
proportion to their Accrued Certificate Interests for such Distribution Date;
(xvii) to REMIC II Regular Interest E-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero, and upon payment in full of the Certificate Balance of the REMIC II
Regular Interest E-1, to REMIC II Regular Interest E-2, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero;
(xviii) to REMIC II Regular Interest E-1 and REMIC II Regular
Interest E-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued
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and unpaid interest at the applicable Pass-Through Rate on such Realized Losses,
pro rata on the basis of their respective entitlements to reimbursement;
(xix) to REMIC II Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interests for such Distribution
Date, to the extent not distributed pursuant to clause (i) above;
(xx) to REMIC II Regular Interest F, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed on such Distribution Date pursuant to the preceding provisions
hereof), until the Certificate Balance thereof has been reduced to zero;
(xxi) to REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xxii) to each of REMIC II Regular Interest G-1 and REMIC II
Regular Interest G-2, the remainder of Distributable Certificate Interest for
each such Interest for such Distribution Date, to the extent not previously
deemed distributed on such Distribution Date pursuant to clause (i) above,
divided among such Interests in proportion to their Accrued Certificate
Interests for such Distribution Date;
(xxiii) to REMIC II Regular Interest G-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero, and upon payment in full thereof, to REMIC II Regular Interest G-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed on such Distribution Date pursuant to the
preceding provisions hereof), until the Certificate Balance thereof has been
reduced to zero;
(xxiv) to REMIC II Regular Interest G-1 and REMIC II Regular
Interest G-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(xxv) to REMIC II Regular Interest H, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
to the extent not distributed pursuant to clause (i) above;
(xxvi) to REMIC II Regular Interest H, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the Certificate
Balance thereof has been reduced to zero;
(xxvii) to REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xxviii) to each of REMIC II Regular Interest J-1 and REMIC II
Regular Interest J-2, the remainder of the Distributable Certificate Interest
for such Interests for such
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Distribution Date, to the extent not distributed pursuant to clause (i) above,
divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date;
(xxix) to REMIC II Regular Interest J-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance thereof has been reduced to zero, and upon payment in full
of the Certificate Balance of the REMIC II Regular Interest J-1, to REMIC II
Regular Interest J-2, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed pursuant to the
preceding provisions hereof), until the Certificate Balance thereof has been
reduced to zero;
(xxx) to REMIC II Regular Interest J-1 and REMIC II Regular
Interest J-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(xxxi) to REMIC II Regular Interest K, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
to the extent not distributed pursuant to clause (i) above;
(xxxii) to REMIC II Regular Interest K, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance thereof has been reduced to zero;
(xxxiii) to REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxiv) to REMIC II Regular Interest L, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
to the extent not distributed pursuant to clause (i) above;
(xxxv) to REMIC II Regular Interest L, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the Certificate
Balance thereof has been reduced to zero;
(xxxvi) to REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxvii) to each of REMIC II Regular Interest M-1 and REMIC II
Regular Interest M-2, the remainder of Distributable Certificate Interest for
each such Interest for such Distribution Date, to the extent not previously
deemed distributed on such Distribution Date pursuant to clause (i) above,
divided among such Interests in proportion to their Accrued Certificate
Interests for such Distribution Date;
(xxxviii) to REMIC II Regular Interest M-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be
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distributed on such Distribution Date pursuant to the preceding provisions
hereof), until the Certificate Balance thereof has been reduced to zero, and
upon payment in full thereof, to REMIC II Regular Interest M-2, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed on such Distribution Date pursuant to the preceding
provisions hereof), until the Certificate Balance thereof has been reduced to
zero;
(xxxix) to REMIC II Regular Interest M-1 and REMIC II Regular
Interest M-2, to reimburse any unreimbursed Realized Losses previously allocated
thereto, plus accrued and unpaid interest at the applicable Pass-Through Rate on
such Realized Losses, pro rata on the basis of their respective entitlements to
reimbursement;
(xl) to REMIC II Regular Interest N, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xli) to REMIC II Regular Interest N, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the Certificate
Balance thereof has been reduced to zero;
(xlii) to REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xliii) to REMIC II Regular Interest O, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xliv) to REMIC II Regular Interest O, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the Certificate
Balance thereof has been reduced to zero;
(xlv) to REMIC II Regular Interest O, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
(xlvi) to REMIC II Regular Interest P, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(xlvii) to REMIC II Regular Interest P, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance thereof has been reduced to zero;
(xlviii) to REMIC II Regular Interest P, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses;
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(xlix) to REMIC II Regular Interest Q, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date
to the extent not distributed pursuant to clause (i) above;
(l) to REMIC II Regular Interest Q, the Principal Distribution
Amount for such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the Certificate
Balance thereof has been reduced to zero;
(li) to REMIC II Regular Interest Q, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses; and
(lii) thereafter, to the Class R-II Certificateholders at such
time as the Certificate Balances of all Classes of REMIC II Regular Interests
have been reduced to zero, and Realized Losses previously allocated thereto have
been reimbursed to the Holders of the REMIC II Regular Interests, any amounts
remaining.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III AND EXCESS INTEREST GRANTOR TRUST.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount (other than the amount attributable to any Excess
Interest, which shall be distributed in accordance with Section 6.5(c)) and
Excess Liquidation Proceeds in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class X-1 Certificates and Class X-2 Certificates, Distributable
Certificate Interest for such Distribution Date, pro rata in proportion to the
Distributable Certificate Interest payable to each such Class;
(ii) to the holders of the Class A-AB Certificates, in reduction
of the Certificate Balance thereof the Principal Distribution Amount for such
Distribution Date until the aggregate Certificate Balance of the Class A-AB
Certificates has been reduced to the Planned Principal Balance for such
Distribution Date;
(iii) to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-AB Certificates, Class A-4 Certificates, in reduction of the Certificate
Balances thereof, in an amount up to the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder): first,
to the Holders of the Class A-1 Certificates, the Principal Distribution Amount
for such Distribution Date until the Certificate Balance thereof is reduced to
zero; 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
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the aggregate Certificate Balance of the
Class A-2 Certificates has been reduced to zero; 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 Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder) until
the aggregate Certificate Balance of the Class A-3
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Certificates has been reduced to zero; fourth, upon payment in full of the
aggregate Certificate Balance of the Class A-3 Certificates, to the holders of
the Class A-AB Certificates, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder) until
the aggregate Certificate Balance of the Class A-AB Certificates has been
reduced to zero; fifth, upon payment in full of the aggregate Certificate
Balance of the Class A-AB Certificates, to the holders of the Class A-4
Certificates, the Principal Distribution Amount for such Distribution Date
(reduced by any prior distributions thereof hereunder) until the aggregate
Certificate Balance of the Class A-4 Certificates has been reduced to zero;
(iv) to the Holders of the Class A Senior Certificates, Class X-1
Certificates and Class X-2 Certificates, pro rata (treating principal and
interest losses separately), to reimburse any Realized Losses previously
allocated thereto and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate on such Realized Losses;
(v) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the Class
A-4 Certificates, to the holders of the Class A-J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(vii) to the Holders of the Class A-J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(viii) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(ix) 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;
(x) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xi) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) 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;
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(xiii) to the Holders of the Class C Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xiv) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xv) 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;
(xvi) to the Holders of the Class D Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xvii) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xviii) 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;
(xix) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xx) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) 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;
(xxii) to the Holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxiii) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiv) 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;
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(xxv) to the Holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxvi) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvii) 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;
(xxviii) to the Holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxix) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxx) 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;
(xxxi) to the Holders of the Class J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxii) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxiii) 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;
(xxxiv) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxv) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxvi) 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;
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(xxxvii) to the Holders of the Class L Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxviii) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxix) 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;
(xl) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xli) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlii) 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;
(xliii) to the Holders of the Class N Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xliv) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlv) 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;
(xlvi) to the Holders of the Class O Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xlvii) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlviii) 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;
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(xlix) to the Holders of the Class P Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(l) to the Holders of the Class Q Certificates, Distributable
Certificate Interest for such Distribution Date;
(li) upon payment in full of the Certificate Balance of the Class
P Certificates, to the Holders of the Class Q Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class Q
Certificates has been reduced to zero;
(lii) to the Holders of the Class Q Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(liii) to the Holders of the Class R-III Certificates at such
time as the Certificate Balances of all Classes of REMIC Regular Certificates
have been reduced to zero, and Realized Losses previously allocated to each
Holder have been reimbursed to the Holders of the REMIC Regular Certificates,
any amounts remaining on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction in effect is greater than or equal to the
Certificate Balances of all the Classes of Subordinate Certificates, the
Principal Distribution Amount will be distributed, first, to the Holders of the
Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-J, Certificates,
pro rata, based on their respective Certificate Balances, in reduction of their
respective Certificate Balances, until the Certificate Balance of each such
Class is reduced to zero; and, second, to the Holders of the Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-J, 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-0X, X-0X, X-0X,
X-0X, X-0X, X-0X, X-0X, X-0X, X-XXX, X-XXX, X-0X, X-0X, X-0X and A-J in lieu of
the distributions described in Section 6.3(a)(ii).
(b) On each Distribution Date, the Trustee shall withdraw amounts in
the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
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This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Trustee shall withdraw from the
Excess Interest Sub-account any Excess Interest on deposit therein, and the
Trustee shall pay such Excess Interest on such Distribution Date to the Class S
Certificates.
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Special Servicer or the
Trustee determines that an Advance (including an Unliquidated Advance)
previously made by it 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), it shall determine the portion of
the amount so withdrawn that is attributable to (w) interest on the related
Mortgage Loan; (x) principal on the related Mortgage Loan; (y) Servicing
Advances; and (z) Advance Interest. The portion of the amount so withdrawn from
the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable Certificate
Interest otherwise payable thereon, and shall result in Unpaid Interest on each
such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the related
Mortgage Loan shall reduce the Available Distribution Amount for REMIC I and
shall be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well
as Advance Interest owing to the Master Servicer, the Special Servicer or the
Trustee with respect
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to Advances shall be treated as Expense Losses and allocated in accordance with
Section 6.6(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with
respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances (or Unliquidated Advances) previously made were
Nonrecoverable Advances, or at such other time as any other Realized Loss shall
occur with respect to any such Mortgage Loan, the Master Servicer shall compute
the Realized Loss with respect to such Mortgage Loan and the Trustee shall
allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not
exceed the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.6(b)(ii) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and any
remaining portion of the Realized Interest Loss shall be allocated as a Realized
Interest Loss on each REMIC I Regular Interest with respect to which Unpaid
Interest was created pursuant to Section 6.6(b)(i) above in proportion to the
amount of Unpaid Interest resulting from the reduction in distributions of
interest on such REMIC I Regular Interest pursuant to Section 6.6(b)(i) above;
(iii) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of principal on the Mortgage Loan shall be applied
first, to make payments of principal on the Corresponding REMIC I Regular
Interest until the Realized Principal Losses previously allocated thereto are
reduced to zero and thereafter to make payments of principal to the
Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(ii) above, in proportion
to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan
with respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of interest on the Mortgage Loan shall be applied
first, to make payments of Unpaid Interest on the Corresponding REMIC I Regular
Interest and thereafter to make payments of interest on each REMIC I Interest
with respect to which Unpaid Interest was created pursuant to Section 6.6(b)(i)
above in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest pursuant
to Section 6.6(b)(i) above; and
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that is
treated as a recovery of expenses on the Mortgage Loan shall be applied in
reimbursement of Expense Losses on each REMIC I Regular Interest with respect to
which an Expense Loss was created
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pursuant to Section 6.6(b)(iii) above in proportion to the amount of the Expense
Loss allocated thereto pursuant to Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Interests for such Distribution Date (or for prior Distribution Dates,
to the extent not previously allocated) shall be allocated to the Corresponding
REMIC II Regular Interests in the amounts and in the manner as will be allocated
to the REMIC Regular Certificates relating thereto pursuant to Section 6.6(f);
provided, however, that Realized Losses allocated to REMIC II Regular Interests
that have Components shall be allocated among the Components of such REMIC II
Regular Interests sequentially in alphabetical and numerical order. Realized
Losses allocated to the Class X Certificates shall reduce the amount of interest
payable on the REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B,
REMIC II Regular Interest A-1C, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-3A,
REMIC II Regular Interest A-3B, REMIC II Regular Interest A-ABA, REMIC II
Regular Interest A-ABB, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest A-J,
REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest D-1,
REMIC II Regular Interest D-2, REMIC II Regular Interest E-1, REMIC II Regular
Interest E-2, REMIC II Regular Interest F, REMIC II Regular Interest G-1, REMIC
II Regular Interest G-2, REMIC II Regular Interest H, REMIC II Regular Interest
J-1, REMIC II Regular Interest J-2, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M-1, REMIC II Regular Interest
M-2, REMIC II Regular Interest N, REMIC II Regular Interest O, REMIC II Regular
Interest P and REMIC II Regular Interest Q 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
Regular Certificates 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 Principal Balance 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-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class X-1
Certificates and Class X-2 Certificates, pro rata, based upon their outstanding
Certificate Balances or accrued interest, as the case may be, and provided
further, that Realized Losses shall not reduce the Aggregate Certificate Balance
of the REMIC III Certificates below the sum of the Aggregate Certificate
Balances of the REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, Net Aggregate Prepayment Interest Shortfalls attributable to
the 000 Xxxxxx Xxxxxx Pari Passu Loan, shall be allocated to the 000 Xxxxxx
Xxxxxx Pari Passu Loan REMIC Regular Interest for such Distribution Date and
shall reduce Distributable Certificate Interest for
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such Interest. On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in REMIC I shall be allocated among the REMIC I Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC I
Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, any Net
Aggregate Prepayment Interest Shortfalls in REMIC II shall be allocated among
the REMIC II Regular Interests, pro rata in proportion to the Accrued
Certificate Interest for each such REMIC II Regular Interest for such
Distribution Date and shall reduce Distributable Certificate Interest for each
such Interest. On each Distribution Date, the amount of any Net Aggregate
Prepayment Interest Shortfalls on the REMIC III Regular Interests shall be
allocated to each Class of Certificates, pro rata, in proportion to the amount
of Accrued Certificate Interest payable to such Class of Certificates on such
Distribution Date, in each case reducing interest otherwise payable thereon. The
amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date. No Prepayment
Interest Shortfall with respect to a Serviced Companion Mortgage Loan or a B
Note shall be allocated to any Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the 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, if the Principal Balance of such Mortgage Loan, Loan Pair
or A/B Mortgage 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 becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property after receipt of the notice described in clause (ii) of the definition
of Appraisal Event, such Appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
60 days after receipt of such notice. Notwithstanding the foregoing, an
Appraisal shall not be required so long as a guaranty or surety bond that is
rated at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization, or debt service reserve or a letter of credit is available
and has the ability to pay off the then outstanding Principal Balance of the
Mortgage Loan in full, except to the extent that the Special Servicer, in
accordance with the Servicing Standard, determines that obtaining an Appraisal
is in the best interests of the Certificateholders. Such Appraisal or valuation
shall be conducted in accordance with the definition of "market value" as set
forth in 12 C.F.R. Section 225.62 and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal or valuation, if not performed by the Special Servicer, shall be
an expense of
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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 Master Servicer, based on
the Appraisal or internal valuation provided to it by the Special Servicer,
shall calculate any Appraisal Reduction. The Master Servicer shall calculate or
recalculate the Appraisal Reduction for any Mortgage Loan, B Note and Loan Pair
based on updated Appraisals or internal valuations provided from time to time to
it by the Special Servicer and report such amount to the Trustee.
Notwithstanding the foregoing, the terms of this Section 6.9 shall not be
applicable to any Non-Serviced Mortgage Loan if the applicable Non-Serviced
Mortgage Loan Special Servicer shall have performed such obligations with
respect to such Mortgage Loan pursuant to the terms of the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Trustee 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 Trustee 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 Trustee
withholds any amount from payments made to any Certificateholder pursuant to
federal withholding requirements, the Trustee shall indicate to such
Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note or Serviced Companion Mortgage
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the holder of the related Serviced Companion Mortgage Loan, as applicable)
during any particular Collection Period will be deemed distributed to itself by
the Trustee on the following Distribution Date as follows: (i) first, the
Trustee shall be deemed to distribute to itself, 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 Trustee
shall be deemed to distribute to itself, as holder of the REMIC II Regular
Interests, any Prepayment Premiums deemed distributed to the REMIC I Regular
Interests, and shall be deemed to distribute such Prepayment Premiums to the
REMIC II Regular Interest then entitled to distributions of principal from the
Principal Distribution Amount (or, if more than one Class of REMIC II Regular
Interests is then entitled to distributions of principal from the Principal
Distribution Amount, such Prepayment Premiums shall be deemed distributed among
such Classes pro rata in accordance with the relevant amounts of entitlements to
distributions of principal). Following such deemed distributions, the Holders of
the respective Classes of Principal Balance Certificates, other than the Class
J, Class K, Class L, Class M, Class N and Class O Certificates, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Trustee will pay to such
Holder(s), an amount equal to, in the case of each such Class, the product of
(a) a fraction, the numerator of which is the amount distributed as principal to
the holders of that Class on that Distribution Date, and the denominator of
which is the total amount distributed as principal to the holders of all Classes
of 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
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related Collection Period. Any portion of such Prepayment Premium that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X Certificates. On each Distribution
Date any portion 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.
ARTICLE VII
CONCERNING THE TRUSTEE AND THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE.
(a) The Trustee, 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. Any permissive right of
the Trustee, provided for in this Agreement shall not be construed as a duty of
the Trustee. The Trustee, shall exercise such of the rights and powers vested in
it by this Agreement and following the occurrence and during the continuation of
any Event of Default hereunder, the Trustee shall use the same degree of care
and skill in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee, 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, shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master 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 shall request the providing
party to correct the instrument and if not so corrected, the Trustee shall
inform the Certificateholders.
(c) Neither the Trustee, nor any of its 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, or any of its
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 any of its 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 the Trustee, 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
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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 any of its 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 of any forms or plans of
liquidation in connection with any REMIC Pool shall not constitute a
representation by the Trustee as to the adequacy of such form or plan of
liquidation;
(v) the Trustee, shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties as
Trustee, 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,
shall be entitled to be reimbursed therefor from the Certificate Account
pursuant to Section 5.2(a)(vi); and
(vi) the Trustee, shall not be charged with knowledge of any
failure by the Master Servicer or the Special Servicer or by each other to
comply with its obligations under this Agreement or any act, failure, or breach
of any Person upon the occurrence of which the Trustee, may be required to act,
unless a Responsible Officer of the Trustee, 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, 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.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, 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, 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 any of its directors, officers,
employees, agents or Controlling Persons shall be personally liable for any
action taken, suffered or omitted
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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 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, 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 shall be paid by the Certificateholders requesting such
examination;
(v) the Trustee, 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, conferred on them by such
appointment; provided that the Trustee, 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) the Trustee shall not be required to obtain a deficiency
judgment against a Mortgagor;
(vii) the Trustee shall not 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) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, the Trustee
shall not 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, the Trustee shall not 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.
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(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or willful misconduct of the Trustee.
SECTION 7.3 THE TRUSTEE, NOT LIABLE FOR CERTIFICATES OR INTERESTS OR
MORTGAGE LOANS. The Trustee, 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)
or of any Mortgage Loan, Assignment of Mortgage or related document save that
(i) the Trustee, represents that, assuming due execution and delivery by the
other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law and (ii) the Trustee represents that, assuming
due execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. The
Trustee, shall not 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 "DESCRIPTION OF THE OFFERED CERTIFICATES-- The Trustee in the
Preliminary Prospectus Supplement and the Final Prospectus Supplement), the
Mortgage Loans or the assignment thereof against the Trustee, 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. The
Trustee shall not be liable for any action or failure of any
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action by the Depositor or the Master Servicer or the Special Servicer or by
each other hereunder. The Trustee shall not at any time have any responsibility
or liability for or with respect to the legality, validity or enforceability of
the Mortgages or the Mortgage Loans, or the perfection and priority of the
Mortgages or the maintenance of any such perfection and priority, or for or with
respect to the efficacy of the Trust or its ability to generate the payments to
be distributed to Certificateholders under this Agreement, including, without
limitation, the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon; the validity
of the assignment of the Mortgage Loans to the Trust or of any intervening
assignment; the completeness of the Mortgage Loans; the performance or
enforcement of the Mortgage Loans (other than if the Trustee shall assume the
duties of the Master Servicer); the compliance by the Depositor, each 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, MAY OWN CERTIFICATES. The Trustee, 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.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE. The Trustee
hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a
corporation, national bank or national banking association authorized to
exercise corporate trust powers, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by federal or
state authority, and (iii) an institution whose short-term debt obligations are
at all times rated not less than "A-1" by S&P and "AA-" by Fitch (or "A+" by
Fitch if the Trustee's short-term unsecured debt is rated at least "F-1" by
Fitch) and whose long-term senior unsecured debt is at all times rated not less
than "A+" by S&P, 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.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE.
(a) The Trustee, may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer 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
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promptly appoint a successor trustee, 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, and the Rating Agencies. If no successor trustee, 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, as the case may be, may petition any court of competent jurisdiction
for the appointment of a successor trustee, as the case may be. It shall be a
condition to the appointment of a successor trustee that such entity satisfies
the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii) or (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies, 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 and the Rating Agencies. In the case
of removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear
all such costs of transfer. Such succession shall take effect after a successor
trustee has been appointed.
(c) [Reserved]
(d) [Reserved]
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding may for cause upon 30 days' written notice
to the Trustee, and to the Depositor remove the Trustee, 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, so removed; the Depositor shall thereupon use its best efforts to
appoint a successor Trustee, in accordance with this Section.
(f) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.7. Upon any succession of the Trustee under this Agreement, the
predecessor Trustee, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee shall not be liable for any action or omission of any
successor Trustee.
SECTION 7.7 SUCCESSOR TRUSTEE.
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(a) Any successor Trustee appointed as provided in Section 7.6 shall
execute, acknowledge and deliver to the Depositor and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, shall become effective and
such successor Trustee 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
herein. The predecessor Trustee shall deliver (at such predecessor's own
expense) to the successor Trustee 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 shall also
deliver all records or copies thereof maintained by the predecessor Trustee in
the administration hereof as may be reasonably requested by the successor
Trustee and shall thereupon be discharged from all duties and responsibilities
under this Agreement. In addition, the Depositor and the predecessor Trustee
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 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 shall accept appointment as provided in this
Section unless at the time of such appointment such successor Trustee shall be
eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee as provided
in this Section, the successor Trustee shall mail notice of the succession of
such Trustee 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. If the successor Trustee
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the Master Servicer shall cause such notice to be mailed at
the expense of the successor Trustee.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE. Any Person into which
the Trustee may be merged or converted or with which it may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which such
Trustee shall be a party, or any Persons succeeding to the business of such
Trustee shall be the successor of such Trustee, hereunder, as applicable,
provided that such Person shall be eligible under the provisions of Section 7.5,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or
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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, 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 shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee and such agent, may be terminated, without
cause and without the payment of any termination fees in the event the Trustee
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 shall remain
at all times obligated and liable to the Trust and the Certificateholders for
performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to 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
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outstanding may at any time accept the resignation of or remove any separate
trustee, co-trustee or custodian, so appointed by it or them, if such
resignation or removal does not violate the other terms of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Trustee 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.
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(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. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE.
(a) The Trustee (including in its capacities as Certificate Registrar
and Authenticating Agent and any other capacity it holds under this Agreement)
and its respective directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action incurred without negligence or willful
misconduct on their respective part, arising out of, or in connection with this
Agreement, the Certificates and the acceptance or administration of the trusts
or duties created hereunder (including, without limitation, any unanticipated
loss, liability or expense incurred in connection with any action or inaction of
the Master Servicer, the Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee 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 and each of its 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 of the reports required to be
provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee shall have given
the Depositor, the Master Servicer, the Sellers, the Holders of the Certificates
written notice thereof promptly after a Responsible Officer of the Trustee,
shall have knowledge thereof; provided, however, that failure to give such
notice to the Depositor, Master Servicer, the Sellers, each other and the
Holders of Certificates shall not affect the Trustee's rights to indemnification
herein unless the Depositor's defense of such claim on behalf of the Trust is
materially prejudiced thereby;
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(ii) while maintaining control over its own defense, the Trustee
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 entered into without the prior consent of the Depositor, which consent
shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee.
(c) The Depositor shall indemnify and hold harmless the Trustee and
its 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 and its respective directors,
officers, employees or agents or Controlling Person may become subject under the
1933 Act, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or
arises out of, or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made, not
misleading and shall reimburse the Trustee and its respective directors,
officers, employees, agents or Controlling Person for any legal and other
expenses reasonably incurred by the Trustee, 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, 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 for inclusion
in the Preliminary Prospectus Supplement and Final Prospectus Supplement is set
forth in the case of the Trustee in the second, fourth and fifth sentences under
the caption entitled "DESCRIPTION OF THE OFFERED CERTIFICATES--The Trustee. The
Trustee shall immediately notify the Depositor and the Sellers if a claim is
made by a third party with respect to this Section 7.11(c) entitling such
person, its 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, their respective directors, officers, employees,
agents or Controlling Person may have to indemnification under this Section
7.11(c), unless the Depositor's defense of such claim is materially prejudiced
thereby. The indemnification provided herein shall survive the termination of
this Agreement and the resignation or removal of the Trustee. The Depositor
shall not be indemnified by the Trust for any expenses incurred by the Depositor
arising from any violation or alleged violation of the 1933 Act or 1934 Act by
the Depositor.
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SECTION 7.12 FEES AND EXPENSES OF TRUSTEE. The Trustee shall be
entitled to receive the Trustee Fee, pursuant to Section 5.3(b)(ii) (which shall
not be limited by any provision of law with respect to the compensation of a
trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee. The Trustee shall also
be entitled to recover from the Trust all reasonable unanticipated expenses and
disbursements incurred or made by the Trustee 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 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.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee may demand payment or delivery of, and
shall receive and collect, all money and other property payable to or receivable
by the Trustee pursuant to this Agreement. The Trustee 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 shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer or the Trustee, as the case may be, shall request the Master Servicer
to make such distribution as promptly as practicable or legally permitted. If
the Trustee 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). 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
entitled to receive all the compensation payable to the Master Servicer (other
than Excess Servicing Fees (subject to Section 8.10(a)) set forth in this
Agreement, including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution,
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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. 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 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 and not otherwise replaced by
the Operating Adviser, the Trustee shall be the successor in all respects to the
Special Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Special Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Special Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Special Servicer contained in this
Agreement or (ii) any obligation incurred by the Special Servicer prior to its
termination or resignation. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Special
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Special Servicer set
forth in this Agreement, including, without limitation the Special Servicer
Compensation (other than any Work-Out Fee payable pursuant to Section 9.11).
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(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions 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.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer, or the Special Servicer, or appointment of a successor to the Master
Servicer, or the Special Servicer, the Trustee shall promptly mail notice
thereof by first class mail to the Rating Agencies, the Operating Adviser, the
Sellers and the Certificateholders at their respective addresses appearing on
the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE. The
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
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full power and authority to own its property, to carry on its business as
presently conducted, and to enter into and perform its obligations under this
Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE. The Trustee, 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 similar
transactions (unless the Trustee 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 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 is
not less than "A" as rated by Fitch, if rated by Fitch and "A" as rated by S&P,
if rated by S&P, respectively, the Trustee may self-insure for the Fidelity Bond
and the Errors and Omissions Insurance Policy.
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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), the Trustee shall not 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 Trustee to timely remit funds but only to the extent such failure is caused
by the Trustee'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 Trustee's internet website, print such
information and make it available to the Certificateholders upon request. The
Luxembourg Paying Agent shall not be the Trustee and the duties of the
Luxembourg Paying Agent hereunder shall be distinct from the duties of the
Trustee.
(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 Trustee shall make available or provide the following information
on the Trustee's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg Paying
Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual Period, the amount of principal and interest distributable on
the related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
(ii) to the Luxembourg Paying Agent on each Distribution Date,
the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any termination of the Trustee or
appointment of a successor to the Trustee; and
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(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 Trustee 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.
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 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); 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 clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee, the Operating
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Adviser, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of a Loan Pair, the holder of the related
Serviced Companion Mortgage Loan, within two Business Days after becoming aware
(x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan
or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master 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 related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loan is subject to the terms and conditions of the related
Intercreditor Agreement. With respect to each Serviced Pari Passu Mortgage Loan
and Serviced Companion Mortgage Loan and each A/B Mortgage Loan, the Trustee,
the Master Servicer and the Special Servicer recognize the respective rights and
obligations of the Trust, the holders of each Serviced Companion Mortgage Loan
and the holders of each B Note under the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable, including, with respect to
the allocation of collections on or in respect of any Serviced Pari Passu
Mortgage, and Serviced Companion Mortgage Loan and any Mortgage Loan and its
related B Note in accordance with the related Loan Pair Intercreditor Agreement
or Intercreditor Agreement, as applicable. The Master Servicer shall comply with
the applicable provisions of each Loan Pair Intercreditor Agreement or
Intercreditor Agreement, as applicable, and if any Serviced Pari Passu Mortgage
Loan, Serviced Companion Mortgage Loan or A/B Mortgage Loan are then Specially
Serviced Mortgage Loans, the Special Servicer shall comply with the applicable
provisions of the related Loan Pair Intercreditor Agreement or Intercreditor
Agreement, as applicable.
(f) Promptly following the Closing Date, the Trustee shall send
written notice in the form of Exhibit DD (to the extent it has not already
provided such notice) to each Non-Serviced Mortgage Loan Master Servicer,
stating that, as of the Closing Date, the Trustee is the holder of the
applicable Non-Serviced Mortgage Loan, and directing such Non-Serviced Mortgage
Loan Master Servicer to remit to the Master Servicer all amounts payable to, and
directing such Non-Serviced Mortgage Loan Master Servicer to forward, deliver or
otherwise
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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 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 (or its
corporate parent) is not in any event less than "A" as rated by Fitch and "BBB"
as rated by S&P, 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 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
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terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note and, in connection
with any Loan Pair, the holder of the Serviced Companion Mortgage Loan) and the
Trustee, customary consents or waivers and other instruments and documents
(including, without limitation, estoppel certificates, financing statements,
continuation statements, title endorsements and reports and other documents and
instruments necessary to preserve and maintain the lien on the related Mortgaged
Property and related collateral), (B) to consent to assignments and assumptions
or substitutions, and transfers of interest of any Mortgagor, in each case
subject to and in accordance with the terms of the related Mortgage Loan and
Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7,
to consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the Master Servicer deems reasonable under the circumstances,
(F) to execute and deliver, on behalf of the Certificateholders (and, if
applicable, the holders of the B Note and Serviced Companion Mortgage Loan) and
the Trustee, documents relating to the management, operation, maintenance,
repair, leasing and marketing of the related Mortgaged Properties, including
agreements and requests by the Mortgagor with respect to modifications of the
standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes, any Serviced Companion Mortgage Loan and any B Note under
the terms of the Mortgage, including all rights of consent or approval
thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter
into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust (and, if applicable, the holders of the B Note
and Serviced Companion Mortgage Loan) or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." Notwithstanding the above, the Master Servicer shall have no power to
(i) waive any Prepayment Premiums or (ii) consent to any modification of a Money
Term of a Mortgage Loan. Nothing contained in this Agreement shall limit the
ability of the 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
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Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not modify the
Servicing Standard.
(b) The 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 three Business Days to the Special Servicer of
any collections it receives from any Specially Serviced Mortgage Loans, subject
to changes agreed upon from time to time by the Special Servicer and 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 or the Special 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 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 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
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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 immediately upon the realization of such loss. 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 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 shall process all defeasances of Mortgage
Loans in accordance with the terms of the Mortgage Loan documents, and shall be
entitled to any fees paid relating thereto. Subject to the terms of the related
Mortgage Loan documents, the 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 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 U.S.
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Treasury obligations, (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 any ARD Loans, on or
before the applicable Anticipated Repayment Date) and to timely pay each
subsequent Scheduled Payment, (v) (A) a Rating Agency Confirmation is received
if the Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance, unless such Rating
Agency has waived in writing such Rating Agency Confirmation requirement or (B)
if the Mortgage Loan is less than or equal to both of the amounts set forth in
clause (A) 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 a Rating Agency Confirmation is received from
Fitch and 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 related Seller shall be to pay an amount equal to such
insufficiency or expense to the extent the related Mortgagor is not required to
pay such amount. Promptly upon receipt of notice of such insufficiency or unpaid
expense, the Master Servicer shall request the related Seller to make such
payment by deposit to the Certificate Account. The Master Servicer shall enforce
the rights of the Trust with respect to the related Seller's obligation to pay
such amounts and in the event the related Seller fails to make such payment,
such amount shall be an expense of the Trust, provided, however, that the
foregoing is not intended to relieve the Seller of its obligations nor the
Master Servicer of its obligation to enforce such rights.
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 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
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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 applicable Seller has notified the related ground lessor of
the transfer of such Mortgage Loan to the Trust pursuant to this Agreement and
informed such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to 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 applicable 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 shall enforce the rights of the Trustee
(as holder of the Non-Serviced Mortgage Loans) under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced
Mortgage Loan Intercreditor Agreement. The Master Servicer shall take such
actions as it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced
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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, the Special 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,
the Special Servicer, and/or the Trustee have duties and obligations under any
such letter agreement, each successor master servicer, successor special
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. 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 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 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.
Notwithstanding anything to the contrary contained herein, it shall be
permissible for a sub-servicing agreement entered into with any sub-servicer
dated on or prior to the Closing Date to prohibit a termination of the related
sub-servicer without cause provided that such sub-servicing agreement has
termination events which are consistent with the Events of Default.
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Any such right of such a designated sub-servicer under the related sub-servicing
agreement shall be binding upon any successor Master Servicer (including the
Trustee) which successor Master Servicer shall assume such sub-servicing
agreement.
(b) Subject to the limitations of subsection (a), the Master Servicer
may appoint one or more sub-servicers (each, a "Sub-Servicer") to perform all or
any portion of its duties hereunder for the benefit of the Trustee and the
Certificateholders.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and
any agent of the Master Servicer in its individual or any other capacity may
become the owner or pledgee of Certificates with the same rights it would have
if it were not the Master Servicer or such agent. Any such interest of the
Master 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 (other
than with respect to a Non-Serviced Mortgage Loan) so long as such insurance is
available at commercially reasonable rates. If the related Mortgagor does not
maintain the insurance set forth in clauses (A) and (B) above, then the Master
Servicer shall cause to be maintained such insurance 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 (subject to the
provisions set forth below) 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.
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Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency 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 Trustee 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 obtain such insurance coverage to
the extent that the Trustee, as mortgagee, has no insurable interest, or to
cause the Mortgagor to maintain or itself obtain insurance coverage beyond what
is available on commercially reasonable terms at a cost customarily acceptable
(in each case, as determined by 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), obtain the approval or
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disapproval of the Operating Adviser (subject to the penultimate paragraph of
Section 9.39) and solely with respect to the A/B Mortgage Loan, to the related
holder of the B Note (but only so long as the holder of such B Note is the
directing or controlling holder as defined in the related Intercreditor
Agreement), subject to any obligation of the Master Servicer to act without such
approval. The Master Servicer shall be entitled to conclusively rely on the
determination of the Operating Adviser (or a B Note holder, as applicable) made
in connection with such approval or disapproval (subject to operation of the
Servicing Standard and the penultimate paragraph of Section 9.39). If any such
approval has not been expressly denied within seven (7) Business Days of receipt
by the Operating Adviser from the Master Servicer of the Master Servicer's
determination and analysis and all information reasonably requested by the
Operating Adviser 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 "A" by Fitch and "A-" by
S&P, self-insures for its obligations. 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 (i) obtain all bills for
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the payment of such items (including renewal premiums), and (ii) except in the
case of Mortgage Loans under which Escrow Amounts are not held by the Master
Servicer, effect payment of all such bills, taxes and other assessments with
respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts as
allowed under the terms of the related Mortgage Loan. If a Mortgagor fails to
make any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the 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 CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor (or other obligor) pursuant to the provisions of any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note (other than a Specially Serviced
Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits, subject
to any conditions set forth in the Mortgage Loan documents, the assignment of
the related Mortgaged Property to, and assumption of such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note by, another Person, the Master
Servicer shall obtain relevant information for purposes of evaluating such
request. For the purpose of the foregoing sentence, the term 'expressly permits'
shall include outright permission to assign, permission to assign upon
satisfaction of certain conditions or prohibition against assignment except upon
the satisfaction of stated conditions. If the Master Servicer recommends to
approve such assignment, the Master Servicer shall provide to the Special
Servicer (and solely with respect to any A/B Mortgage Loan, the holder of the B
Note) a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Assignment and Assumption Submission to Special Servicer, in
the form attached hereto as Exhibit U) and (A) subject to the Operating
Adviser's consent or deemed consent (and the penultimate paragraph of Section
9.39), or with respect to the A/B Mortgage Loan the consent of the related B
Note holder (but only so long as the holder of such B Note is the directing or
controlling holder as defined in the related Intercreditor Agreement) subject to
any authority of the Special Servicer to act without such consent, the Special
Servicer shall have the right hereunder to grant or withhold consent to any such
request for such assignment and assumption in accordance with the terms of the
Mortgage Loan, Serviced Companion Mortgage Loan or B Note and this Agreement,
and any such decision of the Special Servicer shall be in accordance with the
Servicing Standard, (B) failure of the Special Servicer to notify the Master
Servicer in writing, within fifteen (15) Business Days (or in the case of the
A/B Mortgage Loan, within thirty-five (35) Business Days) following the Master
Servicer's delivery of the recommendation described above and the complete
Assignment and Assumption Submission to Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not permit any such assignment or assumption unless
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(i) it has received the written consent of the Special Servicer or such consent
has been deemed to have been granted as described in the preceding sentence and
(ii) with respect to any A/B Mortgage Loan, the Master Servicer has obtained the
approval of the holder of the related B Note, to the extent provided for in the
related Intercreditor Agreement, and in accordance with any procedures therefor
set forth in Section 9.40. Upon consent or deemed consent by the Special
Servicer to such proposed assignment and assumption, the Master Servicer shall
process such request of the related Mortgagor (or other obligor) and shall be
authorized to enter into an assignment and assumption or substitution agreement
with the Person to whom the related Mortgaged Property has been or is proposed
to be conveyed, and/or release the original Mortgagor from liability under the
related Mortgage Loan, Serviced Companion Mortgage Loan or B Note and substitute
as obligor thereunder the Person to whom the related Mortgaged Property has been
or is proposed to be conveyed; provided, however, that the Master Servicer shall
not enter into any such agreement to the extent that any terms thereof would
result in an Adverse REMIC Event or create any lien on a Mortgaged Property that
is senior to, or on parity with, the lien of the related Mortgage. To the extent
permitted by applicable law, the Master Servicer shall not enter into such an
assumption or substitution agreement unless the credit status of the prospective
new Mortgagor (or other obligor) is in conformity to the terms of the related
Mortgage Loan and, if applicable, B Note or Serviced Companion Mortgage Loan
documents. In making its recommendation, the Master Servicer shall evaluate such
conformity in accordance with the Servicing Standard. The Master Servicer shall
notify the Trustee and the Special Servicer of any assignment and assumption or
substitution agreement executed pursuant to this Section 8.7(a). The Master
Servicer shall be entitled to (as additional servicing compensation) 50% of any
assumption fee collected from a Mortgagor in connection with an assignment and
assumption or substitution of a non-Specially Serviced Mortgage Loan executed
pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to
(as additional special servicing compensation) the other 50% of such fee.
The Special Servicer shall not have any liability, and shall be
indemnified by the Trust for any liability to the Mortgagor or the proposed
assignee, for any delay in responding to requests for assumption, if the same
shall occur as a result of the failure of the Rating Agencies or the Operating
Adviser, or any of them, to respond to such request in a reasonable period of
time.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan or a Non-Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms (i) provides that such
Mortgage Loan shall (or may at the mortgagee's option) become due and payable
upon the sale or other transfer of an interest in the related Mortgaged Property
or ownership interest in the related Mortgagor, or (ii) provides that such
Mortgage Loan may not be assumed, or ownership interests in the related
Mortgagor may not be transferred, without the consent of the related mortgagee
in connection with any such sale or other transfer, then, the Master Servicer
shall review and make a determination to either (i) enforce such due-on-sale
clause or (ii) if in the best economic interest of the Trust, waive the effect
of such provision, such waiver to be processed in the same manner as in Section
8.7(a) (including the Special Servicer consent provisions); provided, however,
that if the Principal Balance of such Mortgage Loan (together with any other
Mortgage Loan with which it is cross-collateralized) at such time equals or
exceeds 5% of the Aggregate Certificate Balance or exceeds $35,000,000 or is one
of the then current top 10 loans (by Principal Balance) in the pool, then prior
to waiving the effect of
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such provision, the Master Servicer shall obtain Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver. In connection with the request for such Rating Agency Confirmation,
the Master Servicer shall prepare and deliver to Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Master
Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, and the
Trustee, and the Master Servicer shall promptly thereafter forward such
documents to the Rating Agencies. The Special Servicer and the Master Servicer
shall each be entitled to (as additional compensation) 50% of any fee collected
from a Mortgagor in connection with granting or withholding such consent (other
than any such fee payable in connection with any Non-Serviced Mortgage Loan).
(c) The Trustee for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (a)) or the Special Servicer (pursuant to
subsection (b)) for such assignments and assumptions agreements. Upon the
closing of the transactions contemplated by such documents, the Master Servicer
or the Special Servicer, as the case may be, shall cause the originals of the
assignment and assumption agreement, the release (if any), or the modification
or supplement to the Mortgage Loan to be delivered to the Trustee except to the
extent such documents have been submitted to the recording office, in which
event the Master Servicer shall promptly deliver copies of such documents to the
Trustee and the Special Servicer.
(d) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise,
subject to the Special Servicer's consent or deemed consent (it being
acknowledged that the Special Servicer may be required to obtain the consent or
deemed consent of the Operating Adviser, subject to the penultimate paragraph of
Section 9.39), (or, subject to Section 8.18, waive its right to exercise) any
right it may have with respect to such Mortgage Loan (x) to accelerate the
payments thereon, or (y) to withhold its consent to the creation of any such
additional lien or other encumbrance, in a manner consistent with the Servicing
Standard, the following paragraph and Section 8.18 hereof. The Master Servicer
shall not waive the effect of such provision without first obtaining Rating
Agency Confirmation (including with respect to any securities which are rated by
a Rating Agency evidencing direct beneficial interests in the A Notes and any B
Note) regarding such waiver and complying with the provisions of the next
succeeding paragraph; provided, however, that such
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Rating Agency Confirmation shall only be required if the applicable Mortgage
Loan (x) represents 2% or more of the Principal Balance of all of the Mortgage
Loans held by the Trust, has a Principal Balance of more than $20,000,000 or is
one of the 10 largest Mortgage Loans based on Principal Balance or (y) has a
Loan-to-Value Ratio (which includes the indebtedness to be secured by such
additional lien or other encumbrance and any other loans secured by the related
Mortgaged Property or interests in the related Mortgagor) that is greater than
or equal to 85% or a Debt Service Coverage Ratio (which includes debt service on
the indebtedness to be secured by such additional lien or other encumbrance and
any other loans secured by the related Mortgaged Property or interests in the
related Mortgagor) that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in the
event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) subject to the Operating Adviser's consent (and the
penultimate paragraph of Section 9.39), the Special Servicer shall have the
right hereunder to grant or withhold consent to any such request in accordance
with the terms of the Mortgage Loan and this Agreement, and the Special Servicer
shall not unreasonably withhold such consent and any such decision of the
Special Servicer shall be in accordance with the Servicing Standard, (B) failure
of the Special Servicer to notify the Master Servicer in writing, within fifteen
(15) Business Days following the Master Servicer's delivery of the
recommendation described above and the complete Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package to the Special Servicer
on which the recommendation is based, of its determination to grant or withhold
such consent shall be deemed to constitute a grant of such consent and (C) the
Master Servicer shall not permit any such waiver unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described in the preceding sentence. If the Special Servicer
withholds consent pursuant to the foregoing provisions, it shall provide the
Master Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed waiver, the Master Servicer shall process such request of the
related Mortgagor subject to the other requirements set forth above.
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining
any Rating Agency Confirmation in connection with an assumption of the related
Mortgage Loan are insufficient to reimburse the Trust, then it shall be the sole
obligation of the related Seller to pay an amount equal to such insufficiency to
the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency, the Master Servicer or the Special
Servicer, as applicable, shall request the applicable Seller to make such
payment by deposit to the Certificate Account. The Master Servicer may not waive
such payment by the Mortgagor and shall use its reasonable efforts to collect
such amounts from the Mortgagor to the extent the related mortgage loan
documents require the related Mortgagor to pay such amounts.
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SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the complete defeasance of a
Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan, the purchase of an A Note by the holder of a B Note pursuant to
the related Intercreditor Agreement, or the receipt by the 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 Trustee 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, at its expense, 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 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, 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 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
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respect of any Mortgage Loans (or any B Note or Serviced Companion Mortgage
Loan), whether from the collection of principal and interest payments or from
Liquidation Proceeds or Insurance Proceeds (and other insurance proceeds payable
to the B Note), including any funds on deposit in the 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, 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 holders of the rights to the Excess Servicing Fees, the Excess
Servicing Fees, which shall be payable by the Trust as provided in Section
5.1(c), unless otherwise retained by the holders of such rights. Notwithstanding
anything herein to the contrary, if any of the holders of the right to receive
Excess Servicing Fees resigns or is no longer Master Servicer, for any reason,
it will continue to have the right to receive its portion of the Excess
Servicing Fee except to the extent that any portion of such Excess Servicing Fee
is needed (as determined by the Trustee in its discretion) to compensate any
successor Master Servicer for assuming the duties of Midland Loan Services,
Inc., as the Initial Master Servicer under the Agreement, 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 hereunder.
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note pursuant to the terms of the related Intercreditor
Agreement) payable at a rate above the Mortgage Rate (net of any amount used to
pay Advance Interest), Modification Fees, forbearance fees, Late Fees (net of
Advance Interest) (excluding Late Fees allocable to any B Note if the holder of
the B Note has cured the related default pursuant to the terms of the related
Intercreditor Agreement) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the Master Servicer, provided that
the Master Servicer shall be entitled to (i) receive 50% of assumption fees
collected on Mortgage Loans as provided in Sections 8.7(a) and 8.7(b), (ii)
Modification Fees as provided in Section 8.18 hereof, and (iii) 100% of any
extension fees collected from the related Mortgagor in connection with the
extension of the Maturity Date of any Mortgage Loan approved by the Master
Servicer as
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provided in Section 8.18, unless the consent of the Special Servicer to such
extension is also required under Section 8.18, in which case the Master Servicer
shall be entitled to only 50% of such extension fee and the Special Servicer
shall be entitled to the other 50%; provided, however, that the Master Servicer
shall not be entitled to any such fees in connection with any Specially Serviced
Mortgage Loans or any Non-Serviced Mortgage Loan. Notwithstanding the foregoing,
(i) the Master Servicer shall be entitled to only 50% of any Modification Fees
collected with respect to a consent, waiver, modification or amendment executed
or granted by the Master Servicer if the approval or consent of the Special
Servicer was required in connection therewith and the Special Servicer shall be
entitled to the other 50% and (ii) the Master Servicer shall not be entitled to
any Modification Fee or extension fee in connection with an extension of the
maturity date of a Mortgage Loan (that is not a Specially Serviced Mortgage
Loan) approved by the Special Servicer in accordance with the fifth sentence of
Section 8.18(a)(ii). If 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 all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, with respect to any
Distribution Date, the Master Servicing Fee for the monthly period relating to
such Distribution Date (together with any investment income earned prior to such
Distribution Date on Principal Prepayments as to which Prepayment Interest
Shortfalls were incurred with respect to such Distribution Date) shall be
reduced by an amount equal to the Compensating Interest (if any) relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans for such
Determination Date.
(d) 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 Trustee, (or with respect to a Serviced Companion Mortgage Loan, to the
holder thereof or its servicer), no later than 1:00 p.m., New York City time, on
the related Report Date, the Master Servicer Remittance Report (which shall
include the Loan Periodic Update File) with respect to such Distribution Date
including any information regarding prepayments made pursuant to Section 5.2(b)
and (ii) the Master Servicer shall report to the Trustee 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.
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(b) The Master Servicer, upon request, shall deliver to the Trustee
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 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 Trustee's internet website, provided
that it has notified all parties entitled to delivery of such reports, by
electronic mail or other notice provided in this Agreement, to the effect that
such statements, notices or reports shall thereafter be made available on such
website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to the
Trustee, 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 not later than each Report
Date, commencing in May 2005 (no later than 1 Business Day prior to the related
Distribution Date); (ii) a CMSA Operating Statement Analysis Report and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement (no later
than 1 Business Day prior to the related Distribution Date); (iii) a CMSA Watch
List in accordance with and subject to the terms of Section 8.11(h) on each
Report Date, commencing in May 2005 (no later than 1 Business Day prior to the
related Distribution Date); (iv) a Loan Set-Up File (with respect to the initial
Distribution Date only) not later than the Report Date in April 2005; (v) a Loan
Periodic Update File not later than 1:00pm, New York City time, each Report Date
commencing in April 2005 (which Loan Periodic Update File shall be accompanied
by an Advance Recoverability Report);
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(vi) a Property File not later than each Report Date, commencing in April 2005
(no later than 1 Business Day prior to the related Distribution Date); (vii) a
Delinquent Loan Status Report on each Report Date, commencing in May 2005 (no
later than 1 Business Day prior to the related Distribution Date); (viii) an
Historical Loan Modification Report not later than each Report Date (no later
than 1 Business Day prior to the related Distribution Date), commencing in May
2005, (ix) an Historical Liquidation Report not later than each Report Date (no
later than 1 Business Day prior to the related Distribution Date), commencing in
May 2005; and (x) an REO Status Report on each Report Date (no later than 1
Business Day prior to the related Distribution Date), commencing in May 2005.
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. Notwithstanding anything
herein to the contrary, any report delivered to the Operating Adviser shall be
delivered to the holder of a B Note if it relates to the related A/B Mortgage
Loan; provided, however, for the sake of clarity, the holder of a B Note shall
not be entitled to the Special Servicer's (or other Person's, as applicable)
calculation of the Option Purchase Price for a Defaulted Mortgage Loan.
(h) For each Distribution Date, the Master Servicer shall deliver to
the Trustee (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 delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan or B
Note), the Master Servicer shall, within five (5) Business Days following its
receipt of the proceeds of such drawing, deliver notice thereof to the Special
Servicer, the Operating Adviser, the holder of the related B Note, if
applicable, and the Trustee, which notice shall set forth (i) the unpaid
Principal Balance of such Mortgage Loan or B Note immediately before and
immediately after the drawing, and (ii) a brief description of the circumstances
that in the Master Servicer's good faith and reasonable judgment entitled the
Master Servicer to make such drawing.
(j) The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall prepare and deliver (or make available on their respective
websites) to the Operating Adviser the reports and information described in
Exhibit BB (to the extent not otherwise
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delivered pursuant to this Agreement) in the form and format and within the time
frame set forth therein.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor, the Luxembourg Paying Agent and the Trustee on
or before March 15 of each year (or March 14 if a leap year), commencing in
March 2006, an Officer's Certificate stating, as to the signer thereof, that (A)
a review of the activities of the Master Servicer during the preceding calendar
year or portion thereof and of the performance of the Master Servicer under this
Agreement has been made under such officer's supervision and (B) to the best of
such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. The Master Servicer shall forward a copy of each such
statement to the Rating Agencies and the Operating Adviser. Promptly after
receipt of such Officer's Certificate, the Depositor shall review the Officer's
Certificate and, if applicable, consult with the Master Servicer as to the
nature of any defaults by the Master Servicer in the fulfillment of any of the
Master Servicer's obligations hereunder.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 15 of each year (or March 14 if a leap
year), commencing in March 2006, the Master Servicer at its expense shall cause
a firm of nationally recognized independent public accountants (which may also
render other services to the Master Servicer) and that is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee, the Luxembourg Paying Agent and the Depositor, with a copy to the
Rating Agencies, to the effect that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer, which includes an assertion that the Master Servicer has complied with
certain minimum mortgage loan servicing standards (to the extent applicable to
commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the servicing of commercial and
multifamily mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by the Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within one year of such report) with respect to the Sub-Servicers. Promptly
after receipt of such report, the Depositor shall review the report and, if
applicable, consult with the Master Servicer as to the nature of any defaults by
the Master Servicer in the fulfillment of any of the Master Servicer's
obligations hereunder.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year) for the trailing or quarterly
information received, commencing in the quarter ending on June 30, 2005, 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 to the Trustee and the Operating Adviser, and
solely if it
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relates to any A/B Mortgage Loan, to the holder of the related B Note (but only
so long as the holder of such B Note is the directing or controlling holder as
defined in the related Intercreditor Agreement), a CMSA Operating Statement
Analysis Report and a CMSA Financial File for each Mortgaged Property (in
electronic format), prepared using the non-normalized quarterly and normalized
year-end operating statements and rent rolls received from the related
Mortgagor. Not later than the Report Date occurring in June of each year,
beginning in 2005 for year-end 2004, 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 to the
Trustee and the Operating Adviser a CMSA Operating Statement Analysis Report, a
CMSA Financial File and an NOI Adjustment Worksheet for each Mortgage Loan (in
electronic format), based on the most recently available year-end financial
statements and most recently available rent rolls of each applicable Mortgagor
(to the extent provided to the Master Servicer by or on behalf of each
Mortgagor, or, in the case of Specially Serviced Mortgaged Loans, as provided to
the Special Servicer (by or on behalf of each applicable Mortgagor), which
Special Servicer shall forward such information to 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 to the Operating Adviser, and solely if it relates to any
A/B Mortgage Loan, to the holder of the related B Note (but only so long as the
holder of such B Note is the directing or controlling holder as defined in the
related Intercreditor Agreement), and upon request the Master Servicer shall
make available to the Rating Agencies, the Special Servicer, 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 Trustee shall provide or make available electronically at no cost
to the Certificateholders or Certificate Owners, the Rating Agencies, the
Operating Adviser, the Depositor, the Placement Agents, the Underwriters, and
solely as it relates to any A/B Mortgage Loan, to the holder of the related B
Note (but only so long as the holder of such B Note is the directing or
controlling holder as defined in the related Intercreditor Agreement)and solely
as it relates to any Loan Pair, to the holder of the related Serviced Companion
Mortgage Loan, the CMSA Operating Statement Analysis Reports, CMSA Financial
Files and NOI Adjustment Worksheets described above pursuant to Section 5.4(a).
The Master Servicer shall electronically deliver the CMSA Operating Statement
Analysis Report, the operating statements, rent rolls, property inspections and
NOI Adjustment Worksheet for each Mortgage Loan to the Operating Adviser.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
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(a) Subject to paragraphs (b), (c) and (d) below, the Trustee shall
make available at its Corporate Trust Office, during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any Seller, any Placement Agent, any Underwriter, each Rating
Agency or the Depositor (and the holder of a B Note, if it relates to a B Note
and the holder of a Serviced Companion Mortgage Loan, if it relates to a
Serviced Companion Mortgage Loan), originals or copies of, among other things,
the following items: (i) this Agreement and any amendments thereto, (ii) all
final and released CMSA Operating Statement Analysis Reports and the Master
Servicer Remittance Reports, (iii) all Officer's Certificates (including
Officer's Certificates evidencing any determination of Nonrecoverable Advances)
delivered to the Trustee since the Closing Date, (iv) all accountants' reports
delivered to the Trustee since the Closing Date, (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 and (vi) any and all Officers'
Certificates (and attachments thereto) delivered to the Trustee to support the
Master Servicer's determination that any Advance was not or, if made, would not
be, recoverable. The Trustee may require payment of a sum to be paid by the
requesting party (other than the Rating Agencies, the Trustee, 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 Special
Servicer, the Sellers, the Placement Agents, the Underwriters, the Operating
Adviser, any Certificateholder, any holder of a Serviced Companion Mortgage
Loan, any holder of a B Note or any Certificate Owner, upon reasonable notice
and during normal business hours, reasonable access to all information referred
to in Section 8.15(a) and any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the Master Servicer's or the
Trustee's internet website), 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 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
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
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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 Special Servicer, the Sellers, any Placement Agent, any
Underwriter, any Rating Agency and/or the Certificateholders, the holder of a
Serviced Companion Mortgage Loan, the holder of a B Note or Certificate Owners.
Any transmittal of information by the Master Servicer to any Person other than
the Trustee, 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 2005-HQ5 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.
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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 Trustee 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 Trustee or the
Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Trustee 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 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 Trustee 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 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 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 2005 (provided
that the Master Servicer shall have until March 2006 to complete any inspections
required for the calendar year 2005), or every second calendar year beginning in
2005 (provided that the Master Servicer shall have until March 2006 to complete
any inspections required for the calendar year 2005), if the Principal Balance
of the related Mortgage Loan or Loan Pair is less than $2,000,000; 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 request of the Controlling Class,
inspect or cause to be inspected the related Mortgaged Property every calendar
year beginning in 2005 (provided that the Master Servicer shall have until March
2006 to complete any inspections required for the calendar year 2005) 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
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Underwriters, the Depositor, the Trustee, 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 and any Seller. The Special Servicer
shall have the right to inspect or cause to be inspected (at its own expense)
every calendar year any Mortgaged Property related to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan, provided that the Special Servicer
notifies the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard
may agree to any modification, waiver, amendment or consent of or relating to
any term other than a Money Term or other material term of a Mortgage Loan, a
Serviced Companion Mortgage Loan or a B Note that is not a Specially Serviced
Mortgage Loan (such terms to include, without limitation, Master Servicer
Consent Matters set forth in Section 8.3(a) hereof), provided that such
amendment would not result in an Adverse REMIC Event; and provided, further that
if any consent relates to a release of a letter of credit relating to any
Mortgage Loan (other than letters of credit or portions thereof released upon
satisfaction of conditions specified in the related agreements), then (i) the
Master Servicer shall notify the Special Servicer of any Mortgagor's request to
release such letter of credit which the Master Servicer recommends to release,
and (ii) if the terms of the related Mortgage Loan do not require the Master
Servicer to approve such release, then the Special Servicer, subject to the
Operating Adviser's (or the holder of a B Note, as applicable) consent (and the
penultimate paragraph of Section 9.39 and any authority of the Special Servicer
to act without such consent), shall within fifteen Business Days provide notice
to the Master Servicer as to whether the Master Servicer should approve the
release (and the failure of the Special Servicer to give the Master Servicer
such notice shall automatically be deemed to be an approval by the Special
Servicer that the Master Servicer should grant such release). Notwithstanding
the preceding sentence, if the Master Servicer recommends to approve such
modification, waiver, amendment or consent which is not a Master Servicer
Consent Matter (including, without limitation, any waiver of any requirement
that the Mortgagor post additional reserves or a letter of credit upon the
failure of the Mortgagor to satisfy conditions specified in the Mortgage Loan
documents), the Master Servicer shall provide to the Special Servicer a copy of
the Master Servicer's recommendation and the relevant information obtained or
prepared by the Master Servicer in connection therewith; provided, that (A)
subject to the Operating Adviser's (or the holder of a B Note, as applicable)
consent (and the penultimate paragraph of Section 9.39 and any authority of the
Special Servicer to act without such consent) or deemed consent, the Special
Servicer shall have the right hereunder to grant or withhold consent to any such
proposed modification, waiver, amendment or consent, and such consent of the
Special Servicer shall be consistent with the Servicing Standard, (B) failure of
the Special Servicer to notify the Master Servicer, within fifteen Business Days
(or in the case of the A/B Mortgage Loan, within thirty-five (35) Business Days)
following the Master Servicer's delivery of the recommendation described above,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not enter
into any such proposed modification, waiver, amendment or consent unless it has
received the written
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consent of the Special Servicer or such consent has been deemed to have been
granted as described above. Notwithstanding anything in this Agreement to the
contrary, the Master Servicer shall not be required to obtain or request the
consent of the Special Servicer in connection with any modification, waiver or
amendment, or granting its consent to transactions, under one or more of the
Mortgage Loans that in each case the Master Servicer has determined (in
accordance with the Servicing Standard) is immaterial. In any event, the Master
Servicer shall promptly notify the Special Servicer of any material
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof. Notwithstanding the foregoing provisions of this Section 8.18, if the
Mortgage Loan documents require a Mortgagor to pay a fee for an assumption,
modification, waiver, amendment or consent that would be due or partially due to
the Special Servicer, then the Master Servicer shall not waive the portion of
such fee due to the Special Servicer without the Special Servicer's approval.
(ii) The Master Servicer may, without the consent of any other
Person, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and Serviced Companion Mortgage Loan (as a
collective whole) on a net present value basis than liquidation of such Mortgage
Loan and the Mortgagor has obtained an executed written commitment (subject only
to satisfaction of conditions set forth therein) for refinancing of the Mortgage
Loan or purchase (for an amount sufficient to satisfy such Mortgage Loan) of the
related Mortgaged Property within such 60-day period and continues to make the
Assumed Scheduled Payments with respect to such Balloon Mortgage Loan. The
Master Servicer shall be entitled to (as additional servicing compensation) 100%
of any extension fees collected from a Mortgagor in connection with any
extension pursuant to the immediately preceding sentence. In addition, the
Master Servicer may, with the consent of the Special Servicer after consultation
with the Operating Adviser, or the holder of a B Note, as applicable (such
consent to be obtained by the Master Servicer no later than 30 days following
the Maturity Date of the applicable Balloon Mortgage Loan and, in connection
with any request by the Master Servicer for such consent, the Master Servicer
shall provide the Special Servicer with a recommendation and the materials on
which such recommendation is based), otherwise extend the maturity date of any
Balloon Mortgage Loan that is not a Specially Serviced Mortgage Loan for up to
one year (but for no more than two (2) such extensions of up to one year each)
provided that such extension does not extend beyond the date that is two years
prior to the Rated Final Distribution Date, if the related Borrower has failed
to make the Balloon Payment on such Mortgage Loan or if in the Master Servicer's
sole judgment exercised in good faith (and evidenced by an Officer's
Certificate), a default in the payment of the Balloon Payment is reasonably
foreseeable. The Master Servicer shall process all such extensions referred to
in the immediately preceding sentence and shall be entitled to (as additional
servicing compensation) 50% of any extension fees collected from a Mortgagor
with respect to any such extension, and the Special Servicer shall be entitled
to the other 50% of such extension fees. Following any such two extensions of
the maturity date of a Mortgage Loan which the Master Servicer is permitted to
approve pursuant to the third sentence of this Section 8.18(a)(ii), the Special
Servicer and not the Master Servicer shall be responsible for determining
whether to further extend and, if so, processing the extension of, the maturity
date of such Mortgage Loan; provided, that it shall not be a Servicing
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Transfer Event with respect to any such extension of the maturity date of such
Mortgage Loan by the Master Servicer or the Special Servicer in accordance with
this Section 8.18(a)(ii) (if such extension is effected no later than 30 days
following the date on which the Balloon Payment was first due, taking into
account any previous extensions thereof, and at such time no other circumstance
referred to in the definition of "Servicing Transfer Event" exists that would
cause such Mortgage Loan to be characterized as a Specially Serviced Mortgage
Loan) until such time as the Special Servicer has approved three such extensions
(of up to one year each) and the Borrower has defaulted at the end of such third
extension. In connection with an extension of the maturity date of a Mortgage
Loan (that is not a Specially Serviced Mortgage Loan) approved by the Special
Servicer in accordance with the preceding sentence, the Special Servicer shall
process all requests and related documentation and shall be entitled to retain
100% of any modification fee or extension fee that is actually paid by the
related Mortgagor. The Special Servicer shall promptly notify the applicable
Master Servicer of any extension granted by the Special Servicer in accordance
with this paragraph.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulation
Section 1.860G-2(b) of the Mortgage Loan). Except as provided in the last
sentence of this Section 8.18(b) and Section 8.18(a)(ii), the Master Servicer
shall be entitled to (as additional servicing compensation) 100% of any
Modification Fees collected from a Mortgagor in connection with a consent,
waiver, modification or amendment of a non-Specially Serviced Mortgage Loan
executed or granted pursuant to Section 8.3 or this Section 8.18. The Master
Servicer may charge the Mortgagor for any costs and expenses (including
attorneys' fees and rating agency fees) incurred by the Master Servicer or the
Special Servicer (which amounts shall be reimbursed to the Special Servicer) in
connection with any request for a modification, waiver or amendment. The Master
Servicer agrees to use its best reasonable efforts in accordance with the
Servicing Standard to collect such costs, expenses and fees from the Mortgagor,
provided that the failure or inability of the Mortgagor to pay any such costs
and expenses shall not impair the right of the Master Servicer to cause such
costs and expenses (but not including any modification fee), and interest
thereon at the Advance Rate, to be paid or reimbursed by the Trust as a
Servicing Advance (to the extent not paid by the Mortgagor). If the Master
Servicer believes that the costs and expenses (including attorneys' fees) to be
incurred by the Master Servicer in connection with any request for a
modification, waiver or amendment will result in a payment or reimbursement by
the Trust, then the Master Servicer shall notify the Special Servicer. The
Special Servicer shall be entitled to, and the Master Servicer shall forward to
the Special Servicer, 50% of any Modification Fees collected with respect to a
consent, waiver, modification or amendment executed or granted by the Master
Servicer if the approval or consent of the Special Servicer was required in
connection therewith.
(c) The Master Servicer shall notify the Trustee, the Operating
Adviser, the holder of the B Note, if applicable and the Special Servicer of any
modification, waiver or amendment of any term of any Mortgage Loan permitted by
it under this Section and the date thereof, and shall deliver to the Trustee for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly
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following the execution thereof except to the extent such documents have been
submitted to the applicable recording office, in which event the Master Servicer
shall promptly deliver copies of such documents to the Trustee. The Master
Servicer shall not agree to any modification, waiver, or amendment of any Money
Term of a Mortgage Loan or any term of a Specially Serviced Mortgage Loan. The
Master Servicer shall notify the holder of the B Note and the Serviced Companion
Mortgage Loan of any modification of the monthly payments of an A/B Mortgage
Loan or a Loan Pair, as the case may be, and such monthly payments shall be
allocated in accordance with the related Intercreditor Agreement or Loan Pair
Intercreditor Agreement, as applicable.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $75,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement.
(e) The Master Servicer will not be required to obtain a Rating Agency
Confirmation in connection with this Agreement unless the terms of this
Agreement specifically requires the Master Servicer to do so, and if so required
by the terms of this Agreement, the Master Servicer shall not be permitted to
waive (i) the Rating Agency Confirmation requirement or (ii) the obligation of a
Mortgagor to pay all or any portion of any fee payable in connection with
obtaining the Rating Agency Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Operating Adviser, the Rating Agencies, 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 XVII attached hereto) and,
except for the Rating Agencies, 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
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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, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the state of Delaware, and
shall be and thereafter remain, in compliance with the laws of each State in
which any 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, 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
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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.
(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 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, however, that each of the Rating Agencies provides a
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing direct beneficial ownership interests in any Serviced
Companion Mortgage Loan or B Note). If the conditions to the provisions in the
foregoing sentence are not met, the Trustee may terminate the Master Servicer's
servicing of the Mortgage Loans pursuant hereto, such termination to be effected
in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
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(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, shall have assumed the Master
Servicer's responsibilities and obligations under this Agreement and Rating
Agency Confirmation (including with respect to any securities rated by a Rating
Agency evidencing interests in the A Notes and any B Note) shall have been
obtained. Notice of such resignation shall be given promptly by the Master
Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee, provided that (i) a successor
servicer (w) is available, (x) has assets of at least $15,000,000 and (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; (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, 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; (iii) the purchaser or transferee has assets in excess
of $15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; 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
the 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 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 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
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 Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be liable for any error of judgment made in good faith by any
officer, unless it shall be proved that the Master Servicer or such officer was
negligent in ascertaining the pertinent facts. Neither the Master Servicer nor
any director, officer, employee, agent or Affiliate, shall be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Trustee in this Agreement. The Trust shall
indemnify and hold harmless the Master Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such breach of representation, warranty or covenant to the extent the
Master Servicer is unable to recover such amounts from the Person in breach.
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(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed by it to be genuine
and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trustee, and the Special
Servicer, as the case may be, and held harmless against any loss, liability or
expense including reasonable attorneys' fees incurred in connection with any
legal action relating to the Trustee's, or the Special Servicer's, as the case
may be, respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard of its respective duties hereunder, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Master Servicer's duties hereunder or by reason of
negligent disregard of the Master Servicer's obligations and duties hereunder.
The Master Servicer shall immediately notify the Trustee and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer to indemnification hereunder,
whereupon the Trustee, or the Special Servicer, in each case, to the extent the
claim is related to its respective willful misfeasance, bad faith or negligence,
may assume the defense of any such claim (with counsel reasonably satisfactory
to the Master Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Trustee and the Special Servicer shall not affect any rights that
the Master Servicer may have to indemnification under this Agreement or
otherwise, unless the Trustee's, or the Special Servicer's defense of such claim
is materially prejudiced thereby. Such indemnity shall survive the termination
of this Agreement or the resignation or removal of the Master Servicer
hereunder. Any payment hereunder made by the Trustee, or the Special Servicer
pursuant to this paragraph to the Master Servicer shall be paid from the
Trustee's, or Special Servicer's own funds, without reimbursement from the Trust
therefor except to the extent achieved through subrogation as provided in this
Agreement. Any
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expenses incurred or indemnification payments made by the Trustee, or the
Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee or
the Special Servicer, as the case may be, was (x) not culpable or (y) found to
not have acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent
of the Master Servicer (the "Master Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes, as provided in the following paragraph, against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses (collectively, "Master
Servicer Losses") incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B
Notes, any REO Property or the Certificates or any exercise of any right under
this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of the
Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence, indemnification for
Master Servicer Losses described in the preceding paragraph (including in the
case of such Master Servicer Losses that relate primarily to the administration
of the Trust, to any REMIC Pool or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC provisions of the Code or the
actual payment of any REMIC tax or expense) shall be paid out of collections on,
and other proceeds of, the Mortgage Loans as a whole but not out of collections
on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In
the case of any such Master Servicer Losses that do not relate primarily to the
administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then such
indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable
Intercreditor Agreement and (y) if the collections and proceeds described in
subclause (x) of this clause (1) are not sufficient to so indemnify the Master
Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage Loan,
then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor
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Agreement and (z) if the aggregate collections and proceeds described in
subclauses (x) and (y) of this clause (2) are not sufficient to so indemnify the
Master Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole.
The Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Master Servicer) and out of the Trust pay
all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. The indemnification
provided herein shall survive the termination of this Agreement. The Trustee, or
the Master Servicer shall promptly make from the Certificate Account (and, if
and to the extent that the amount due shall be paid from collections on, and
other proceeds of, any Serviced Companion Mortgage Loan or any B Note, as
described above, out of the related Serviced Companion Mortgage Loan Custodial
Account or the related A/B Loan Custodial Account) any payments certified by the
Master Servicer to the Trustee as required to be made to the Master Servicer
pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Special
Servicer, the Trust, the Depositor, and any director, officer, employee, agent
or Controlling Person thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Trustee,
the Special Servicer, the Depositor, and the Trust may sustain arising from or
as a result of the willful misfeasance, bad faith or negligence in the
performance of any of the Master Servicer's duties hereunder or by reason of
negligent disregard of the Master Servicer's obligations and duties hereunder
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations), and if
in any such situation the Master Servicer is replaced, the parties hereto agree
that the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Special Servicer, or the Depositor, as applicable, shall
immediately notify the Master Servicer if a claim is made by any Person with
respect to this Agreement or the Mortgage Loans entitling the Trustee, the
Depositor, the Special Servicer, or the Trust to indemnification under this
Section 8.25(b), whereupon the Master Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Special
Servicer, or the Depositor, as applicable) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Master Servicer shall not affect any rights
the Trustee, the Special Servicer, the Depositor, or the Trust may have to
indemnification under this Agreement or otherwise, unless the Master Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Special Servicer and the
Trustee. Any expenses incurred or indemnification payments made by the Master
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final, non-appealable judgment that the conduct of the
Master Servicer was not culpable or that the Master Servicer did not act with
willful misfeasance, bad faith or negligence.
(c) Reserved.
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(d) Any Non-Serviced Mortgage Loan Master Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Master Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Master Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 8.26 EXCHANGE ACT REPORTING
(a) The Master Servicer, the Special Servicer, the Trustee shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfaction of its reporting requirements under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). Within 15 days after each Distribution
Date, the Trustee shall prepare, execute and file on behalf of the Trust any
Forms 8-K customary for similar securities as required by the Exchange Act and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder; provided that the Depositor shall file the initial
Form 8-K in connection with the issuance of the Certificates. The Trustee shall
file each Form 8-K with a copy of the related Monthly Certificateholders Report
attached thereto. If the Depositor directs that any other attachments are to be
filed with any Form 8-K, such attachments shall be delivered to the Trustee in
XXXXX-compatible form or as otherwise agreed upon by the Trustee and the
Depositor, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th
of each year (or such earlier date as may be required by the Exchange Act and
the rules and regulations of the Commission), the Trustee shall prepare and file
on behalf of the Trust a Form 10-K, in substance as required by applicable law
or applicable interpretations thereof of the staff of the Commission. Such Form
10-K shall include as exhibits each annual statement of compliance described
under Sections 8.12 and 9.18 and each accountant's report described under
Sections 8.13 and 9.19, in each case to the extent they have been timely
delivered to the Trustee. If they are not so timely delivered, the Trustee shall
file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Trustee. Each Form 10-K shall also
include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as
described in paragraph (b) of this Section 8.26. Neither the Trustee nor the
Master Servicer shall have any liability with respect to any failure to properly
prepare, execute or file such periodic reports resulting from the Master
Servicer's or the Trustee's inability or failure to obtain any information not
resulting from its own negligence, bad faith or willful misconduct. Prior to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust under the Exchange Act.
(b) The Form 10-K shall include any certification (the "Xxxxxxxx-Xxxxx
Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act of 2002, and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Commission's staff) and
a copy of such Xxxxxxxx-Xxxxx
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Certification shall be provided to the Rating Agencies. An officer of the
Depositor shall sign the Xxxxxxxx-Xxxxx Certification. On or before March 20th
of each year with respect to which a Form 10-K is filed by the Trustee, as set
forth above, the Master Servicer and the Special Servicer (each, a "Performing
Party") shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
(the "Certifying Person") a certification (each, a "Performance Certification"),
in the form set forth on Exhibit CC hereto on which the Certifying Person, the
Depositor (if the Certifying Person is an individual), and the Depositor's
partner, representative, Affiliate, member, manager, director, officer, employee
or agent (collectively with the Certifying Person, "Certification Parties") can
rely. In addition, in the event that any Serviced Companion Mortgage Loan is
deposited into a commercial mortgage securitization, on or before March 20th of
each year with respect to which a Form 10-K is filed by the related trustee for
such commercial mortgage securitization, the Master Servicer and the Special
Servicer, shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification
with respect to such commercial mortgage securitization a Performance
Certification (which shall address the matters contained in the Performance
Certification, but solely with respect to the related Serviced Companion
Mortgage Loan) on which such Person and such Person's partner, representative,
Affiliate, member, manager, director, officer, employee or agent can rely.
Notwithstanding the foregoing, nothing in this paragraph shall require any
Performing Party to (i) certify or verify the accurateness or completeness of
any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or under any
other applicable servicing agreement or (iii) with respect to completeness of
information and reports, to certify anything other than that all fields of
information called for in written reports prepared by such Performing Party have
been completed except as they have been left blank on their face. In addition,
if directed by the Depositor, such Performing Party shall provide an identical
certification to Depositor's certified public accountants that such Performing
Party provided to its own certified public accountants to the extent such
certification relates to the performance of such Performing Party's duties
pursuant to this Agreement or a modified certificate limiting the certification
therein to the performance of such Performing Party's duties pursuant to this
Agreement. In the event any Performing Party is terminated or resigns pursuant
to the terms of this Agreement, such Performing Party shall provide a
Performance Certification to the Depositor pursuant to this Section 8.26(b) with
respect to the period of time such Performing Party was subject to this
Agreement.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.26 or (ii) negligence, bad faith or willful misconduct on the
part of the Performing Party in the performance of such obligations.
(d) Nothing contained in this Section 8.26 shall be construed to
require any party to this Agreement other than the Depositor, or any of such
party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification.
The failure of any party to this Agreement other than the Depositor, or any of
such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification shall not be regarded as a breach by such party of any of its
obligations under this Agreement. This Section 8.26 may be amended by the
parties hereto pursuant to Section 13.3 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of
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designating the Certifying Person without any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer
shall act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the REMIC
Pools created hereby or the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC as REMICs
under the Code. The Master Servicer shall take no action or cause any REMIC Pool
to take any action that could (i) endanger the status of any REMIC Pool as a
REMIC under the Code or (ii) result in the imposition of a tax upon any REMIC
Pool (including, but not limited to, the tax on prohibited transactions as
defined in Code Section 860F(a)(2) or on prohibited contributions pursuant to
Section 860G(d)) unless the Trustee shall have received a Nondisqualification
Opinion (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such status or result in the
imposition of such tax. The Master Servicer shall comply with the provisions of
Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of the
Master Servicer created hereby (other than the obligation of the Master Servicer
to make payments to the Trustee as set forth in Section 8.29 and the obligations
of the Master Servicer to the Trustee, the Special Servicer and the Trust) shall
terminate (i) on the date which is the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining outstanding (and final
distribution to the Certificateholders) or (B) the disposition of all REO
Property (and final distribution to the Certificateholders), (ii) if an Event of
Default described in clauses 8.28(a)(iii), (iv) or (ix) has occurred, 60 days
following the date on which the Trustee or Depositor gives written notice to the
Master Servicer that the Master Servicer is terminated or (iii) if an Event of
Default described in clauses 8.28(a)(i), (ii), (v), (vi), (vii) or (viii) has
occurred, immediately upon the date on which the Trustee or the Depositor gives
written notice to the Master Servicer that the Master Servicer is terminated.
After any Event of Default, the Trustee (i) may elect to terminate the Master
Servicer by providing such notice, and (ii) shall provide such notice if holders
of Certificates representing more than 25% of the Aggregate Certificate Balance
of all Certificates so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Trustee or
the holder of a B Note or otherwise make any payment required to be remitted by
the Master Servicer under the terms of this Agreement, including any required
Advances; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account or the A/B Loan Custodial Account that
continues unremedied for one Business Day following the date on which such
deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied,
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shall have been given to the Master Servicer by the Depositor or the Trustee;
provided, however, that if the Master Servicer certifies to the Trustee and the
Depositor that the Master Servicer is in good faith attempting to remedy such
failure, such cure period will be extended to the extent necessary to permit the
Master Servicer to cure such failure; provided, further that such cure period
may not exceed 90 days; or
(iv) any breach of the representations and warranties contained
in Section 8.20 hereof that materially and adversely affects the interest of any
holder of any Class of Certificates and that continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the same to
be remedied, shall have been given to the Master Servicer by the Depositor or
the Trustee, provided, however, that if the Master Servicer certifies to the
Trustee and the Depositor that the Master Servicer is in good faith attempting
to remedy such breach, such cure period will be extended to the extent necessary
to permit the Master Servicer to cure such breach; provided, further that such
cure period may not exceed 90 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(vi) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(viii) the Master Servicer is removed from S&P's approved master
servicer list and is not reinstated within 60 days and the ratings then assigned
by S&P to any Classes of Certificates are downgraded, qualified or withdrawn
(including, without limitation, being placed on "negative credit watch") in
connection with such removal;
(ix) the Trustee shall receive notice from Fitch to the effect
that the continuation of the Master Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates; or
(x) the Master Servicer has been downgraded to a servicer rating
level below "CMS3" (or its equivalent) by Fitch.
(b) If the Master Servicer is terminated based upon an Event of
Default set forth in clause (i) (as to the obligation to make P&I Advances),
(viii), (ix) or (x) of Section 8.28(a), then the Master Servicer shall have the
right to enter into a primary servicing agreement
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with the successor Master Servicer with respect to all Mortgage Loans, so long
as the terminated Master Servicer is on the approved list of commercial mortgage
loan servicers maintained by S&P and is rated not less than "CMS3" (or its then
equivalent) by Fitch.
(c) Notwithstanding the other provisions of this Section 8.28, (A) if
any Event of Default on the part of the Master Servicer occurs that affects a
Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Xxxxx'x, if the Master Servicer receives actual knowledge that Xxxxx'x
has (i) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (ii) placed one or more Classes of Certificates on
"watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Xxxxx'x within 60 days
of the date that the Master Servicer obtained such actual knowledge) and, in the
case of either of clauses (i) or (ii), citing servicing concerns with the Master
Servicer as the sole or material factor in such rating action, and in either
case, the Master Servicer is not otherwise terminated in accordance with this
Section 8.28, then, at the request of the holder of such affected Serviced
Companion Mortgage Loan, the Trustee shall require the Master Servicer to
appoint, within 30 days of the Trustee's request, a Sub-Servicer (or, if the
related Mortgage Loan is currently being sub-serviced, to replace, within 30
days of the Trustee's request, the then-current Sub-Servicer with a new
Sub-Servicer) with respect to the related Mortgage Loan only, but as to no other
Mortgage Loan. In connection with the Master Servicer's appointment of a
Sub-Servicer at the request of the Trustee in accordance with this Section
8.28(c), the Master Servicer shall obtain a Rating Agency Confirmation (such
Rating Agency Confirmation to be an expense of the requesting Serviced Companion
Mortgage Loan holder). The related Sub-Servicing Agreement shall provide that
any Sub-Servicer appointed by the Master Servicer at the request of the Trustee
in accordance with this Section 8.28(c) shall be responsible for all duties, and
shall be entitled to all compensation, of the Master Servicer under this
Agreement with respect to the subject Loan Pair.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon
which the final transfer by the Master Servicer to the Trustee shall be made,
shall be given promptly in writing by the Master Servicer to the Trustee no
later than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Trustee the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust as provided
herein) shall terminate and the Master Servicer shall transfer to the Trustee
the amounts remaining in the Certificate Account (and any sub-account) after
making the withdrawals permitted to be made pursuant to Section 5.2 and shall
thereafter terminate the Certificate Account and any other account or fund
maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Master Servicer pursuant to clause (ii) of the first paragraph of Section
8.28, or on the date on which a written notice of termination is given to the
Master Servicer pursuant to clause (iii) of the first paragraph of Section 8.28
all authority, power and rights of the Master Servicer under this
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Agreement, whether with respect to the Mortgage Loans or otherwise, shall
terminate (except for any rights relating to unpaid servicing compensation or
unreimbursed Advances or, if the terminated Master Servicer is Midland Loan
Services, Inc., its rights to the Excess Servicing Fee, subject to Section
8.10(a)); provided that in no event shall the termination of the Master Servicer
be effective until a successor servicer shall have succeeded the Master Servicer
as successor servicer, subject to approval by the Rating Agencies, notified the
Master Servicer of such designation and such successor servicer shall have
assumed the Master Servicer's obligations and responsibilities hereunder, as set
forth in an agreement substantially in the form hereof, with respect to the
Mortgage Loans and, in the circumstances set forth in the last sentence of
Section 8.28(b), entered into a new primary servicing agreement with the
predecessor Master Servicer in substantially the same form as Exhibit AA
attached hereto. Except as provided in the next sentence, the Trustee may not
succeed the Master Servicer as servicer until and unless it has satisfied the
provisions that would apply to a Person succeeding to the business of the Master
Servicer pursuant to Section 8.22(b) hereof. Notwithstanding the foregoing
sentence, in the event that the Master Servicer is terminated as a result of an
event described in Section 8.28(a)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee
shall act as successor servicer immediately upon delivery of a notice of
termination to the Master Servicer and shall use commercially reasonable efforts
within 90 days of assuming the duties of the Master Servicer, either to satisfy
the conditions of Section 8.22(b) hereof or to transfer the duties of the Master
Servicer to a successor servicer who has satisfied such conditions. The Trustee
is hereby authorized and empowered to execute and deliver, on behalf of the
Master Servicer, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The Master Servicer agrees to cooperate with the
Trustee, in effecting the termination of the Master Servicer's responsibilities
and rights hereunder as Master Servicer including, without limitation, notifying
Mortgagors of the assignment of the servicing function and providing the Trustee
all documents and records in electronic or other form reasonably requested by it
to enable the successor servicer designated by the Trustee to assume the Master
Servicer's functions hereunder and to effect the transfer to such successor for
administration by it of all amounts which shall at the time be or should have
been deposited by the Master Servicer in the Certificate Account and any other
account or fund maintained or thereafter received with respect to the Mortgage
Loans.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of the first paragraph of Section 8.28 relating solely
to an Event of Default set forth in clause (viii) or (ix) of Section 8.28(a),
and if the Master Servicer provides the Trustee with the appropriate "request
for proposal" materials within five Business Days after receipt of such written
notice of termination, then the Trustee shall promptly thereafter (using such
"request for proposal" materials provided by the Master Servicer) solicit good
faith bids for the rights to service the Mortgage Loans under this Agreement
from at least three but no more than five Qualified Bidders or, if three
Qualified Bidders cannot be located, then from as many persons as the Trustee
can determine are Qualified Bidders. At the Trustee's request, the Master
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids. In no event shall the Trustee be responsible if less than three
Qualified Bidders submit bids for the right to service the Mortgage Loans under
this Agreement.
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(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof, not later than 30 days after
termination of the Master Servicer hereunder. The Trustee shall select the
Qualified Bidder with the highest cash bid (or such other Qualified Bidder as
the Master Servicer may direct) (the "Successful Bidder") to act as successor
Master Servicer hereunder. The Trustee shall direct the Successful Bidder to
enter into this Agreement as successor Master Servicer pursuant to the terms
hereof, and in connection therewith to deliver the amount of the Successful
Bidder's cash bid to the Trustee by wire transfer of immediately available funds
to an account specified by the Trustee no later than 10:00 a.m. New York City
time on the date specified for the assignment and assumption of the servicing
rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 30 days after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such 30-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b).
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude the Excess Servicing
Rights and those servicing rights and duties as to which Midland Loan Services,
Inc. has made an election for the execution of a primary servicing agreement as
contemplated by Section 8.28(b).
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER AND
SPECIAL SERVICER.
No less often than on a monthly basis or as agreed upon by the Master
Servicer and the Operating Adviser, each of the Master Servicer and the Special
Servicer shall, without charge, make a Servicing Officer available to answer
questions from the Operating Adviser regarding the performance and servicing of
the Mortgage Loans and/or REO Properties for which the Master Servicer or the
Special Servicer, as the case may be, is responsible.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to
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any Loan Pair, for the benefit of the holder of the related Serviced Companion
Mortgage Loan, the Special Servicer shall service the Specially Serviced
Mortgage Loans and manage the related REO Properties in accordance with the
Servicing Standard and the terms of this Agreement. Certain of the provisions of
this Article IX make explicit reference to their applicability to Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note; notwithstanding such
explicit references, references in this Article IX to "Mortgage Loans" shall be
construed, unless otherwise specified, to refer also to such B Note and such
Serviced Companion Mortgage Loan (but any other terms that are defined in
Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
(b) The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer, the Operating Adviser (or if applicable, the holder of the B Note) and
the Trustee within two Business Days after becoming aware that a Mortgage Loan
has become a Rehabilitated Mortgage Loan, which notice shall identify the
applicable Mortgage Loan. Upon the receipt of such notice by the Master Servicer
and the Trustee, such Mortgage Loan shall become a Rehabilitated Mortgage Loan
and will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to
a Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall xxxx its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a B Note or
Serviced Companion Mortgage Loan) shall be deposited in the Certificate Account,
and all amounts collected by the Master Servicer with respect to a Specially
Serviced Mortgage Loan that is a B Note shall be deposited in the related A/B
Loan Custodial Account and all amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan that is a Serviced Companion
Mortgage Loan shall be deposited in the related Serviced Companion Mortgage Loan
Custodial Account. The
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Master Servicer shall within three Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and the
amount thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Master Servicer in writing how to apply such payment (with the
application of such payments to be made in accordance with the related Mortgage
Loan documents (including the related Intercreditor Agreement, if any) or in
accordance with this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with respect
to any one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the Special Servicer shall monitor the dates by which any
claim must be made or action must be taken under such Environmental Insurance
Policy to achieve the payment of all amounts thereunder to which the Trust is
entitled in the event the Special Servicer has actual knowledge of any event
giving rise to a claim under such Environmental Insurance Policy (an "Insured
Environmental Event") and (ii) if the Special Servicer has actual knowledge of
an Insured Environmental Event with respect to such Mortgage Loan, the Special
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of the related 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 (of if
applicable, the Special Servicer) as a Servicing Advance. All extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred by the
Special Servicer in fulfilling its obligations under this Section 9.1 shall be
paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in effect
a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.
The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond
shall be issued by a Qualified Insurer (unless the Special 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 Special 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 Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "A" as rated by Fitch and "A" as
rated by S&P, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right
to use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer and upon receipt of a
Rating Agency Confirmation from Fitch. The Special Servicer shall notify the
Master Servicer, Trustee and solely as it relates to any A/B Mortgage Loan, the
holder of the related B Note, and solely as it relates to any Loan Pair, the
holder of the related Serviced Companion Mortgage Loan, of the appointment of
any Sub-Servicer of the Special Servicer.
Notwithstanding anything to the contrary contained herein, to the
extent consistent with the Servicing Standard, the Special Servicer may retain
third parties to perform
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ministerial functions, including, without limitation, tax monitoring,
reconveyances, inspections or similar functions, without requiring such party to
execute a sub-servicing agreement and without complying with the requirements
for a sub-servicing agreement contained herein; provided that notwithstanding
any such appointment and any other provision herein to the contrary, the Special
Servicer shall remain liable for the performance of such functions hereunder.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this Agreement (and,
in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer), the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust (or holder of a B Note or
Serviced Companion Mortgage Loan, as applicable), any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Specially Serviced Mortgage
Loans and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the ownership of any REO Property securing a
Mortgage Loan. The Trustee shall execute on the Closing Date a Power of Attorney
in the form of Exhibit S-2 hereto and shall furnish the Special Servicer from
time to time, upon request, with any additional powers of attorney of the Trust,
empowering the Special Servicer to take such actions as it determines to be
reasonably necessary to comply with its servicing, administrative and management
duties hereunder, and the Trustee shall execute and deliver or cause to be
executed and delivered such other documents as a Special Servicing Officer may
request, that are necessary or appropriate to enable the Special Servicer to
service, administer and manage the Specially Serviced Mortgage Loans and carry
out its duties hereunder, in each case as the Special Servicer determines is in
accordance with the Servicing Standard and the terms of this Agreement;
provided, that, prior to initiating any proceedings in any court of law or
equity (but not defending any proceedings in any court of law or equity) or
instituting any proceeding to foreclose on any Mortgaged Property in the name of
the Trust in any state, the Special Servicer shall notify the Trustee in writing
and not institute or initiate any such proceedings for a period of five Business
Days from the date of its delivery of such notice to the Trustee, unless the
Special Servicer reasonably believes that such action should be taken in less
than five Business Days to preserve the property of the Trust for the benefit of
Certificateholders, and the Trustee may within five Business Days of its receipt
of such notice advise the Special Servicer that it has received an Opinion of
Counsel (the cost of which shall be an expense of the Trust) from an attorney
duly licensed to practice law in the state where the related Mortgaged Property
or REO Property is located, that it is likely that the laws of the state in
which said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name;
provided, further, that the Special Servicer shall not be liable to the extent
that it relies on the advice provided in such Opinion of Counsel. Upon receipt
of any such advice from the Trustee, the Special Servicer shall take such action
in the name of such Person or Persons, in trust for the Trust (or holder of a B
Note or Serviced Companion Mortgage Loan, if applicable), as shall be consistent
with the Opinion of Counsel obtained by the Trustee. Such Person or
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Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust (or holder of a B Note or the Serviced
Companion Mortgage Loan, if applicable). In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust (or holder of a B Note or
the Serviced Companion Mortgage Loan, if applicable), be deemed to be the agent
of the Trust (or holder of a B Note or the Serviced Companion Mortgage Loan, as
applicable). The Special Servicer shall indemnify the Trustee for any loss,
liability or reasonable expense (including attorneys' fees) incurred by the
Trustee or any director, officer, employee, agent or Controlling Person of it or
its affiliates in connection with any negligent or intentional misuse of the
foregoing powers of attorney furnished to the Special Servicer by the Trustee.
Such indemnification shall survive the resignation or termination of the Special
Servicer hereunder, the resignation or termination of the Trustee and the
termination of this Agreement. The Special Servicer shall not have any
responsibility or liability for any act or omission of the Trustee, the Master
Servicer or the Depositor that is not attributable to the failure of the Special
Servicer to perform its obligations hereunder. The Special Servicer may
conclusively rely on any advice of counsel rendered in a Nondisqualification
Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2005); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected a Mortgaged Property as soon as practicable after the
related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Special
Servicer shall provide to the Master Servicer (who shall provide, 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) and the Operating Adviser copies of the Inspection
Reports relating to such inspections as soon as practicable after the completion
of any inspection.
(c) Pursuant to the related Intercreditor Agreement, each owner of a B
Note has agreed that the Master Servicer and the Special Servicer are authorized
and obligated to service and administer such B Note pursuant to this Agreement.
(d) Pursuant to the related Loan Pair Intercreditor Agreement, each
owner of a Serviced Companion Mortgage Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
such Serviced Companion Mortgage Loan pursuant to this Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Special Servicer's obligations and responsibilities hereunder
and the Special Servicer's authority with respect to a Serviced Pari Passu
Mortgage Loan are limited by and subject to the terms of the related Loan Pair
Intercreditor Agreement. At such time when the related Serviced Companion
Mortgage Loan is deposited into a different commercial mortgage securitization
(the "Other Securitization"), the
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Special Servicer shall be required to consult with the special servicer of the
Other Securitization (the "Other Special Servicer") in respect thereof, and
shall provide the Other Special Servicer with an opportunity to review any
proposed action to be taken in respect thereof. The Other Special Servicer and
the operating adviser of the Other Securitization (the "Other Operating
Adviser") shall have such opportunity to consult with the Special Servicer for a
period from the date of receipt of the Special Servicer's written description of
its proposed action through (but excluding) the fifth Business Day following the
date of receipt (the "Initial Review Period"). The Special Servicer shall
implement its written proposal if the Other Special Servicer (in consultation
with the Other Operating Adviser) does not disapprove the proposed action within
the Initial Review Period, unless the Special Servicer has been directed to do
otherwise by the Operating Adviser (in which event the Special Servicer shall
advise the Other Special Servicer of such alternate course of action). If the
Other Special Servicer (in consultation with the Other Operating Adviser)
disagrees with any aspect of the written proposal and, after consulting with the
Special Servicer during the Initial Review Period, is unable to reach agreement
on the proper course of action and notifies the Special Servicer of its
disagreement in writing, then the Other Special Servicer shall be entitled to an
additional period of five Business Days (the "Additional Review Period") to
continue its discussions with the Special Servicer and the Operating Adviser. If
the Other Special Servicer and the Special Servicer agree on a revised course of
action within the Initial Review Period or the Additional Review Period, then
the Special Servicer shall revise the written proposal to reflect the agreed
upon revised course of action and shall implement that course of action. If the
Other Special Servicer and the Special Servicer are unable to agree on the
appropriate course of action by the end of the Additional Review Period, then
the Special Servicer shall decide, in accordance with the Servicing Standard set
forth in this Agreement, what course of action to follow. If an Event of Default
has occurred and is continuing with respect to the Special Servicer under this
Agreement, which Event of Default does not relate to any Mortgage Loan other
than the related Loan Pair, then the trustee under the pooling and servicing
agreement relating to the Other Securitization (the "Other Pooling and Servicing
Agreement") shall be entitled to direct the Trustee to (a) terminate the
defaulting Special Servicer solely with respect to the related Loan Pair and (b)
appoint a successor Special Servicer that meets the eligibility requirements of
the Other Pooling and Servicing Agreement and this Agreement. In such event, the
trustee under the Other Pooling and Servicing Agreement shall exercise its
rights set forth in the preceding sentence at the direction of the
certificateholders holding at least 25% of the certificate balance of the
certificates issued under the Other Securitization or the Other Operating
Adviser. The replacement of the Special Servicer with respect to a Loan Pair, as
contemplated above, will in any event be subject to obtaining Rating Agency
Confirmation hereunder and any required Rating Agency Confirmation with respect
to the certificates by the trustee under the Other Pooling and Servicing
Agreement.
(e) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have 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 such Non-Serviced Mortgage Loan Master Servicer and
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 Special Servicer's obligations and responsibilities hereunder and the
Special Servicer's authority with respect to any Non-Serviced
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Mortgage Loan are limited by and subject to the terms of the applicable
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 Special
Servicer shall take such actions as it shall deem reasonably necessary to
facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer including, but not limited to, delivering
appropriate Requests for Release to the Trustee and Custodian (if any) in order
to deliver any portion of the related Mortgage File to the applicable
Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage
Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall
have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or
may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership interest
in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not
be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and the holder of the B Note, if applicable, and in
accordance with the REMIC Provisions, take such actions as it deems to be in the
best economic interest of the Trust in accordance with the Servicing Standard,
and may waive or enforce any due-on-sale clause contained in the related
Mortgage Note or Mortgage; provided, however, that if the Principal Balance of
such Mortgage Loan at such time equals or exceeds 5% of the Aggregate
Certificate Balance or exceeds $35,000,000 or is one of the then current top 10
loans (by Principal Balance) in the pool, then prior to waiving the effect of
such provision, the Special Servicer shall obtain Rating Agency Confirmation
regarding such waiver. In connection with the request for such consent, the
Special Servicer shall prepare and deliver to Fitch and S&P a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Special
Servicer shall also prepare and provide Fitch and S&P with such memorandum and
documentation for all transfer and assumption consents granted for Mortgage
Loans below the threshold set forth above, but for which the Special Servicer's
decision will be sufficient and a Rating Agency Confirmation is not required. As
to any Mortgage Loan that is not a Specially Serviced Mortgage Loan and contains
a provision in the nature of a "due-on-sale" clause, the Special Servicer shall
have the rights and
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duties set forth in Section 8.7(b). The Special Servicer shall be entitled to
100% of all assumption fees in connection with Specially Serviced Mortgage
Loans.
After notice to, and the consent of, the Operating Adviser, or the B
Note holder, if applicable (and subject to the penultimate paragraph of Section
9.39 and any authority of the Special Servicer to act without such consent), the
Special Servicer is also authorized to take or enter into an assignment and
assumption agreement from or with the Person to whom such property has been or
is about to be conveyed, and/or to release the original Mortgagor from liability
upon the Specially Serviced Mortgage Loan and substitute the new Mortgagor as
obligor thereon; provided, that except as otherwise permitted by Section 9.5(c),
any such assignment and assumption or substitution agreement shall contain no
terms that could result in an Adverse REMIC Event. To the extent permitted by
law, the Special Servicer shall enter into an assumption or substitution
agreement that is required under the related Mortgage Loan documents (either as
a matter of right or upon satisfaction of specified conditions) and shall
otherwise enter into any assumption or substitution agreement only if the credit
status of the prospective new mortgagor and the underwriting of the new
mortgagor is in compliance with the Special Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Special Servicer
shall notify the Master Servicer of any such assignment and assumption or
substitution agreement and the Special Servicer shall forward to the Trustee the
original of such agreement, which original shall be added by the Trustee to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Sections 9.39 and 9.40, and
the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
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 Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders, the
holder
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of the related Serviced Companion Mortgage Loan and the holder of the related B
Note (as a collective whole) on a net present value basis (the relevant
discounting of amounts that will be distributable to Certificateholders, the
holder of the related Serviced Companion Mortgage Loan and the holder of the
related B Note (as a collective whole) to be performed at a rate, taking into
account the related Mortgage Rate (or, in the case of an A/B Mortgage Loan, such
discounting to be performed at the weighted average of the Mortgage Rate and the
stated mortgage rate on the B Note) and the risk of collection, (C) such
modification, waiver or amendment would not cause an Adverse REMIC Event
(including with respect to any securities evidencing interests in any A Note or
any B Note) to occur or adversely affect the tax status of any trust including a
B Note, and (D) if notice to the Operating Adviser, or the B Note holder of such
modification, waiver or amendment is required pursuant to Section 9.39 or
Section 9.40, as applicable, the Special Servicer has made such notice. The
Special Servicer, with respect to any B Note and any Serviced Companion Mortgage
Loan that is a Specially Serviced Mortgage Loan, shall notify the holder of the
B Note and the Serviced Companion Mortgage Loan, as applicable, of any
modification of the monthly payments of an A/B Mortgage Loan or a Loan Pair, as
the case may be, and such monthly payments shall be allocated in accordance with
the related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable. All notices, reports and documents sent to the Operating Adviser
shall be sent to the 75 Broad B Note holder to the extent that such notices,
reports and documents relate to the 75 Broad A/B Mortgage Loan.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged
Property covered by a group secured creditor impaired property environmental
insurance policy for more than five years beyond such Mortgage Loan's Maturity
Date unless a new Phase I Environmental Report indicates that there is no
environmental condition or the Mortgagor obtains, at its expense, an extension
of such policy on the same terms and conditions to cover the period through five
years past the extended Maturity Date, provided that, (i) if such Mortgage Loan
is secured by a ground lease, the Special Servicer shall give due consideration
to the remaining term of the ground lease and (ii) in no case shall the Maturity
Date of any such Mortgage Loan be extended past a date that is two years prior
to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced
by an Officer's Certificate certifying the information in the proviso to the
first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust, the holder of any
Serviced Companion Mortgage Loan or the holder of any B Note in such collateral
would be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to such substitution or addition of
collateral (or such arrangement for possession, care or protection) shall obtain
the prior written consent of the Trustee with respect thereto (which consent
shall not
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be unreasonably withheld, delayed or conditioned); provided, however, that the
Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which will
require the Trustee to undertake any additional duties or obligations or incur
any additional expense. Notwithstanding the foregoing, the Special Servicer will
not permit a Mortgagor to substitute collateral for any portion of the Mortgaged
Property pursuant to Section 9.5(c) unless it shall have received the Operating
Adviser's consent or the B Note holder's consent, if applicable, or deemed
consent (subject to the penultimate paragraph of Section 9.39 or any authority
of the Special Servicer to act without such consent) and a Rating Agency
Confirmation in connection therewith, the costs of which to be payable by the
related Mortgagor to the extent provided for in the Mortgage Loan documents. If
the Mortgagor is not required to pay for the Rating Agency Confirmation, then
such expense will be paid by the Trust. The parties hereto acknowledge that if
the Trust incurs any Additional Trust Expense associated solely with the release
of collateral that is not required to be paid by a Mortgagor pursuant to the
related Mortgage Loan documents (and such Additional Trust Expense is not paid
by the Mortgagor), including, but not limited to, rating agency fees, then the
sole obligation of the related Seller shall be to pay an amount equal to such
expense to the extent the related Mortgagor is not required to pay them.
Promptly upon receipt of notice of such unpaid expense, regarding a Specially
Serviced Mortgage Loan, the Special Servicer shall request the related Seller to
make such payment by deposit to the Certificate Account.
(e) The Special Servicer will promptly deliver to the Master Servicer,
the Operating Adviser, the Trustee, the Rating Agencies (and, solely with
respect to an A/B Mortgage Loan, the related B Note Holder) a notice, specifying
any such assignments and assumptions, modifications, waivers or amendments, such
notice identifying the affected Specially Serviced Mortgage Loan. Such notice
shall set forth the reasons for such waiver, modification, or amendment
(including, but not limited to, information such as related income and expense
statements, rent rolls, occupancy status, property inspections, and an internal
or external appraisal performed in accordance with MAI standards and
methodologies (and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section 4.4
hereof)). The Special Servicer shall also deliver to the Trustee (or the
Custodian), for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee
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paid by the related Mortgagor in connection with an assignment and assumption
executed pursuant to Section 8.7(a) and 50% of any assumption fee paid by the
related Mortgagor in connection with an assignment and assumption executed
pursuant to Section 8.7(b). The Special Servicer shall be entitled to 100% of
any assumption fee received in connection with a Specially Serviced Mortgage
Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser prior to acting,
and provisions of this Agreement requiring such shall be of no effect, if the
Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the Special Servicer shall ignore and act without regard to
any such advice, direction or objection that the Special Servicer has
determined, in its reasonable good faith judgment would) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool, (C) expose the
Trust, the Depositor, the Master Servicer, the Special Servicer, or the Trustee,
or any of their respective Affiliates, officers, directors, employees or agents,
to any material claim, suit or liability, or (D) materially expand the scope of
the Special Servicer's responsibilities under this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property
or a lien on an ownership interest in the Mortgagor,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall, with the
consent or deemed consent of the Operating Adviser or if applicable, the B Note
holder (subject to the penultimate paragraph of Section 9.39 or any authority of
the Special Servicer to act without such consent), exercise (or, subject to
Section 9.5, waive its right to exercise) any right it may have with respect to
such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold
its consent to the creation of any such additional lien or other encumbrance, in
a manner consistent with the Servicing Standard. Prior to waiving the effect of
such provision with respect to a Mortgage Loan, the Special Servicer shall
obtain Rating Agency Confirmation regarding such waiver; provided, however, that
such Rating Agency Confirmation shall only be required if the applicable
Mortgage Loan (x) represents 2% or more of the Principal Balance of all of the
Mortgage Loans held by the Trust, has a Principal Balance of more than
$20,000,000 or is one of the 10 largest Mortgage Loans based on Principal
Balance or (y) has a Loan-to-Value Ratio (which includes the indebtedness to be
secured by such additional lien or other encumbrance and any other loans secured
by the related Mortgaged Property or interests in the related Mortgagor)
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that is greater than or equal to 85% or a Debt Service Coverage Ratio (which
includes debt service on the indebtedness to be secured by such additional lien
or other encumbrance and any other loans secured by the related Mortgaged
Property or interests in the related Mortgagor) that is less than 1.2x.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Mortgage Loan, the Special Servicer will
immediately notify the Master Servicer. The Special Servicer shall determine, in
accordance with the Servicing Standard, whether an instrument of satisfaction
shall be delivered and, if the Special Servicer determines that such instrument
should be delivered, the Special Servicer shall deliver written approval of such
delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under each
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to time are required by the terms hereof to be delivered
to the Trustee. Any funds received by the Special Servicer in respect of any
Specially Serviced Mortgage Loan or any REO Property or which otherwise are
collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds
or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any
REO
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Property shall be transmitted to the Master Servicer within one Business Day of
receipt to the Certificate Account, except that if such amounts relate to REO
Income, they shall be deposited in the REO Account. The Special Servicer shall
provide access to information and documentation regarding the Specially Serviced
Mortgage Loans to the Trustee, the Master Servicer, the Operating Adviser, the B
Note holder and their respective agents and accountants at any time upon
reasonable written request and during normal business hours, provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder;
provided further that the Trustee shall be entitled to receive from the Special
Servicer all such information as the Trustee shall reasonably require to perform
their respective duties hereunder. In fulfilling such a request, the Special
Servicer shall not be responsible for determining whether such information is
sufficient for the Trustee's, the Master Servicer's, the Operating Adviser's, or
the B Note holder's purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or
the holder of the related B Note, if an A/B Mortgage Loan is involved and/or the
holder of the related Serviced Companion Mortgage Loan, if a Loan Pair is
involved) owns the Specially Serviced Mortgage Loans and all Mortgage Files
representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which the Special Servicer is entitled hereunder); and the Special
Servicer agrees that all documents or instruments constituting part of the
Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans
which come into the possession or custody of, or which are subject to the
control of, the Special Servicer, shall be held by the Special Servicer for and
on behalf of the Trust (or the holder of the related B Note, if an A/B Mortgage
Loan is involved or the holder of the related Serviced Companion Mortgage Loan,
if a Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of California, and
shall be in compliance with the laws of each State in which any Mortgaged
Property (including any REO Property) which is, or is related to a Specially
Serviced Mortgage Loan is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to so qualify or
comply
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would not adversely affect the Special Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special 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 Special Servicer has duly and
validly authorized the execution, delivery and performance by it of this
Agreement and this Agreement has been duly executed and delivered by the Special
Servicer; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, and the Master Servicer,
evidences the valid and binding obligation of the Special Servicer enforceable
against the Special 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 by the Special
Servicer, the consummation by the Special Servicer of the transactions
contemplated hereby, and the fulfillment of or compliance by the Special
Servicer 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 best of the Special
Servicer's knowledge, threatened, against it, the outcome of which, in the
Special Servicer's reasonable judgment, could reasonably be expected to
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; and
(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.
(b) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special 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 Special Servicer by any of the
Trustee, the Master Servicer. The Special Servicer shall give prompt notice to
the Trustee, the Depositor, the Operating Adviser, the B
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Note holder, if applicable, and the Master 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 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL LIABILITY
INSURANCE POLICIES.
(a) For all REO Properties (other than REO Properties relating to
Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to maintain with a Qualified Insurer (A)
a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage
Loan documents and the related Mortgage so require, contains no exclusion as to
any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of
2002) which does not provide for reduction due to depreciation in an amount
which is not less than the full replacement cost of the improvements of such REO
Property or in an amount not less than the unpaid Principal Balance plus all
unpaid interest and the cumulative amount of Servicing Advances (plus Advance
Interest) made with respect to such Mortgage Loan, any related B Note and
Serviced Companion Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (B)
any other insurance coverage for such REO Property which the related Mortgagor
was required to maintain for the related Mortgaged Property under the related
Mortgage, subject, as to earthquake insurance, to the second sentence following
this sentence. If the improvements to the Mortgaged Property are in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
the Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law or, with respect to insurance other than earthquake
insurance, as set forth in clause (B) of the first sentence of this Section
9.9(a) and, nevertheless, at its sole option and at the Trust's expense, it (if
required at origination and is available at commercially reasonable rates) may
obtain such earthquake insurance. The Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to obtain a comprehensive
general liability insurance policy for all REO Properties. The Special Servicer
shall, to the extent available at commercially reasonable rates (as determined
by the Special Servicer in accordance with the Servicing Standard) and to the
extent consistent with the Servicing Standard, use its reasonable efforts to
maintain a Rent Loss Policy covering revenues for a period of at least twelve
months and a comprehensive general liability policy with coverage comparable to
prudent lending requirements in an amount not less than $1 million per
occurrence. All applicable policies required to be maintained by the Special
Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee
and be endorsed with a standard mortgagee clause. The costs of such insurance
shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance
policies maintained pursuant to this Section 9.9 (other than amounts to be
applied to the restoration or repair of the REO Property) shall be deposited
into the applicable REO Account.
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Any cost incurred in maintaining the insurance required hereby for any REO
Property shall be a Servicing Advance, subject to the provisions of Section 4.4
hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available on commercially reasonable terms at a cost customarily
acceptable (in each case, as determined by the Special 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 Special Servicer will be required to
maintain insurance against property damages resulting from terrorism or similar
acts if the terms of the related Mortgage Loan documents so require unless the
Special 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. The Special Servicer shall notify
the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special 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 with a minimum claims
paying ability rating of at least "A" by Fitch and "A" by S&P or otherwise
approved by the Rating Agencies or (ii) if the Special Servicer, provided that
the rating of such Person's long-term debt is not less than "A" by Fitch and "A"
by S&P, self-insures for its obligations as set forth in the first paragraph of
this Section 9.9. In the event that the Special Servicer shall cause any
Mortgage Loan, Serviced Companion Mortgage Loan and B Note to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan, Serviced Companion Mortgage Loan and
B Note (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 Special Servicer as a Servicing Advance,
subject to the provisions of Section 4.4 hereof. If such policy contains a
deductible clause, the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 9.9 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, A/B Mortgage Loan or Serviced Companion
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, A/B Mortgage Loan or Serviced Companion 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 Special Servicer agrees to present, on its
behalf and on behalf of the Trustee, claims under any such master force placed
or blanket insurance policy.
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SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. Such amounts, if any, collected by the Special Servicer
from the related Mortgagor shall be transferred by the Special Servicer to the
Master Servicer within one Business Day of receipt thereof, and deposited by the
Master Servicer in the Certificate Account. The Special Servicer shall be
entitled to receive a Liquidation Fee from the Liquidation Proceeds received in
connection with a final disposition of a Specially Serviced Mortgage Loan or REO
Property in whole or in part (whether arising pursuant to a sale, condemnation
or otherwise). With respect to each REO Mortgage Loan that is a successor to a
Mortgage Loan secured by two or more Mortgaged Properties, the reference to "REO
Property" in the preceding sentence shall be construed on a property-by-property
basis to refer separately to the acquired real property that is a successor to
each of such Mortgaged Properties, thereby entitling the Special Servicer to a
Liquidation Fee from the Liquidation Proceeds received in connection with a
final disposition of, and Condemnation Proceeds received in connection with,
each such acquired property as the Liquidation Proceeds related to that property
are received. The Special Servicer shall also be entitled to additional special
servicing compensation of an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are
Specially Serviced Mortgage Loans which have received voluntary Principal
Prepayments not from Liquidation Proceeds or from modifications of Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date. If the
Special Servicer resigns or is terminated for any reason, it shall retain the
right to receive any Work-Out Fees payable on Mortgage Loans that became
Rehabilitated Mortgage Loans while it acted as Special Servicer and remained
Rehabilitated Mortgage Loans at the time of such resignation or termination for
so long as such Mortgage Loan remains a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw (i) from the Certificate Account, the Special Servicer
Compensation in respect of each Mortgage Loan (but not a B Note), (ii) from any
Serviced Companion Mortgage Loan Custodial Account, the Special Servicer
Compensation to the extent related solely to the related Serviced Companion
Mortgage Loan and (iii) from any A/B Loan Custodial Account, the Special
Servicer Compensation to the extent related solely to the related B Note, in the
time and manner set forth in Section 5.2 of this Agreement. The Special Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
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(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest (net of amounts used to pay Advance Interest) or other usual and
customary charges and fees actually received from the Mortgagor in connection
with any Specially Serviced Mortgage Loan shall be retained by the Special
Servicer, to the extent not required to be deposited in the Certificate Account
pursuant to the terms of this Agreement (other than any such fees payable in
connection with any Non-Serviced Mortgage Loan). The Special Servicer shall be
entitled to, and the Master Servicer shall forward to the Special Servicer, 50%
of any Modification Fees collected with respect to a consent, waiver,
modification or amendment executed or granted by the Master Servicer if the
approval or consent of the Special Servicer was required in connection
therewith. The Special Servicer shall be entitled to retain 100% of any
Modification Fee or extension fee that is actually paid by the related Borrower
in connection with an extension of the maturity date of a Mortgage Loan (that is
not a Specially Serviced Mortgage Loan) approved or consented to by the Special
Servicer in accordance with Section 8.18(a)(ii), unless such approval or consent
of the Special Servicer is to an extension contemplated by the third sentence of
Section 8.18(a)(ii), in which case the Special Servicer shall be entitled to
only 50% of such extension fee and the Master Servicer shall be entitled to the
other 50%. The Special Servicer shall also be permitted to receive 50% of all
assumption fees collected with respect to Mortgage Loans that are not Specially
Serviced Mortgage Loans as provided in Section 8.7(a) and 8.7(b) and 100% of all
assumption fees collected with respect to Mortgage Loans that are Specially
Serviced Mortgage Loans as provided in Section 9.5(a) (other than any such fees
payable in connection with any Non-Serviced Mortgage Loan). To the extent any
component of Special Servicer Compensation is in respect of amounts usually and
customarily paid by Mortgagors, the Special Servicer shall use reasonable good
faith efforts to collect such amounts from the related Mortgagor, and to the
extent so collected, in full or in part, the Special Servicer shall not be
entitled to compensation for the portion so collected therefor hereunder out of
the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to Section 9.4(a) and Section 9.36, shall use its reasonable efforts
to foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses that would be a Nonrecoverable Advance unless the Special
Servicer determines that such Servicing Advance is in the best interest of the
Certificateholders (and in the case of any A/B Mortgage Loan, the holder of the
related B Note and the Trust as a collective whole and in the case of any Loan
Pair, the holder of the related Serviced Companion Mortgage Loan and the Trust
as a collective whole).
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
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(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC Pool will
not cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust, or any trust
that holds a Serviced Companion Mortgage Loan would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of CERCLA, or any applicable
comparable federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental Report
prepared by a Person (who may be an employee or affiliate of the Master Servicer
or the Special Servicer) who regularly conducts environmental site assessments
in accordance with the standards of FNMA in the case of multi-family mortgage
loans and customary servicing practices in the case of commercial loans for
environmental assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably likely
to produce a greater recovery on a net present value basis than pursuing a claim
under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions); provided, however, that such compliance pursuant to clause (i)
and (ii) above or the taking of such action pursuant to this clause (iii) shall
only be required to the extent that the cost thereof is a Servicing Advance of
the Master Servicer or the Special Servicer pursuant to this Agreement, subject
to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced
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Mortgage Loan is not liquidated and a Final Recovery Determination has been made
with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall
treat such cost as a Servicing Advance subject to the provisions of Section 4.4
hereof; provided that, in the latter event, the Special Servicer shall use its
good faith reasonable business efforts to recover such cost from the Mortgagor
in connection with the curing of the default under the Specially Serviced
Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions) or than not
pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair, taken as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the Special Servicer
determines that a material possibility exists that Liquidation Expenses with
respect to Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the Principal
Balance of the related Mortgage Loan, the Special Servicer shall not attempt to
bring such Mortgaged Property into compliance and shall not acquire title to
such Mortgaged Property unless it has received the written consent of the
Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage Loan
and the holder of the related Serviced Companion Mortgage Loan if in connection
with a Loan Pair), shall sell the REO Property expeditiously, but in any event
within the time period, and subject to the conditions, set forth in Section
9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve,
protect and operate the REO Property for the holders of beneficial interests in
the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair) solely for the purpose of its prompt disposition
and sale.
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SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property one or more accounts held in trust for the
benefit of the Certificateholders (and the holder of the related B Note if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan if in connection with a Loan Pair) in the name of "Xxxxx
Fargo Bank, National Association., as Trustee for the Holders of Xxxxxx Xxxxxxx
Capital I Inc. Commercial Mortgage Pass-Through Certificates Series 2005-HQ5,
the holder of any Serviced Companion Mortgage Loan and the holder of any B Note
as their interests may appear [name of Property Account]" (each, an "REO
Account"), which shall be an Eligible Account. Amounts in any REO Account shall
be invested in Eligible Investments. The Special Servicer shall deposit all
funds received with respect to an REO Property in the applicable REO Account
within two days of receipt. The Special Servicer shall account separately for
funds received or expended with respect to each REO Property. All funds in each
REO Account may be invested only in Eligible Investments. The Special Servicer
shall notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser,
and subject to the specific requirements and prohibitions of this Agreement and
any applicable consultation rights of the holder of the related B Note relating
to an A/B Mortgage Loan, to do any and all things in connection therewith as are
consistent with the Servicing Standard, subject to the REMIC Provisions, and in
such manner as the Special Servicer deems to be in the best interest of the
Trust (and in the case of any A/B Mortgage Loan, the holder of the related B
Note and the Trust as a collective whole and in the case of any Loan Pair, the
holder of the related Serviced
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Companion Mortgage Loan and the Trust as a collective whole), and, consistent
therewith, may advance from its own funds to pay for the following items (which
amounts shall be reimbursed by the Master Servicer or the Trust subject to
Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts
cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that could result or have resulted in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor shall
be deemed to relieve the Special Servicer of any of its duties and obligations
to the Trustee with respect to the operation and management of any such REO
Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification Opinion
must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for the Trust (or, if
applicable, the holder of a B Note or a Serviced Companion Mortgage Loan)
pursuant to this subsection (d) for
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indemnification of the Special Servicer by such Independent Contractor, and
nothing in this Agreement shall be deemed to limit or modify such
indemnification. All fees of the Independent Contractor (other than fees paid
for performing services within the ordinary duties of a Special Servicer which
shall be paid by the Special Servicer) shall be paid from the income derived
from the REO Property. To the extent that the income from the REO Property is
insufficient, such fees shall be advanced by the Master Servicer or the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and
Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by any REMIC of any "income from nonpermitted
assets" within the meaning of Section 860F(a)(2) of the Code or any "net income
from foreclosure property" which is subject to tax under the REMIC Provisions
unless (i) the Trustee and the Special Servicer have received an Opinion of
Counsel (at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC or REMIC I by the REO Property would not
result in the imposition of a tax upon the 000 Xxxxxx Xxxxxx Pari Passu Loan
REMIC or REMIC I or (ii) in accordance with the Servicing Standard, the Special
Servicer determines the income or earnings with respect to such REO Property
will offset any tax under the REMIC Provisions relating to such income or
earnings and will maximize the net recovery from the REO Property to the
Certificateholders (and, if applicable, the holder of a B Note or a Serviced
Companion Mortgage Loan), as a collective whole. The Special Servicer shall
notify the Trustee, and the Master Servicer of any election by it to incur such
tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an
amount equal to the tax payable thereby from revenues collected from the related
REO Property, (ii) provide the Trustee with all information for the Trustee to
file the necessary tax returns in connection therewith and (iii) upon request
from the Trustee, pay from such account to the Trustee the amount of the
applicable tax. The Trustee shall file the applicable tax returns based on the
information supplied by the Special Servicer and pay the applicable tax from the
amounts collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give rise
to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
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(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, or if
applicable, the B Note holder, shall use its reasonable efforts consistent with
the Servicing Standard to sell any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders
(and with respect to a Serviced Companion Mortgage Loan or a B Note, for the
holders of such loans, as a collective whole), but in no event later than the
end of the third calendar year following the end of the year of its acquisition,
and in any event prior to the Rated Final Distribution Date or earlier to the
extent necessary to comply with REMIC provisions, unless (i) the Trustee, on
behalf of the applicable REMIC Pool, has been granted an extension of time (an
"Extension") (which extension shall be applied for at least 60 days prior to the
expiration of the period specified above) by the Internal Revenue Service to
sell such REO Property (a copy of which shall be delivered to the Trustee upon
request), in which case the Special Servicer shall continue to attempt to sell
the REO Property for its fair market value for such period longer than the
period specified above as such Extension permits or (ii) the Special Servicer
seeks and subsequently receives, at the expense of the Trust, a
Nondisqualification Opinion, addressed to the Trustee and the Special Servicer,
to the effect that the holding by the Trust of such REO Property subsequent to
the period specified above after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of a REMIC, as defined in
Section 860F(a)(2) of the Code, or cause any REMIC Pool to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Trustee has not
received an Extension or such Opinion of Counsel and the Special Servicer is not
able to sell such REO Property within the period specified above, or if an
Extension has been granted and the Special Servicer is unable to sell such REO
Property within the extended time period, the Special Servicer shall, after
consultation with the Operating Adviser, or if applicable, the B Note holder,
before the end of such period or extended period, as the case may be, auction
the REO Property to the highest bidder (which may be the Special Servicer) in
accordance with the Servicing Standard; provided, however, that no Interested
Person shall be permitted to purchase the REO Property at a price less than the
Purchase Price; and provided, further that if the Special Servicer intends to
bid on any REO Property, (i) the Special Servicer shall notify the Trustee of
such intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust
an Appraisal of such REO Property (or internal valuation in accordance with the
procedures specified in Section 6.9) and (iii) the Special Servicer shall not
bid less than the fair market value set forth in such Appraisal. Neither any
Seller nor the Depositor may purchase REO Property at a price in excess of the
fair market value thereof.
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(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Trustee and the Master Servicer (and
the holder of the related B Note, if any, if in connection with an A/B Mortgage
Loan and the holder of the related Serviced Companion Mortgage Loan, if in
connection with a Loan Pair) a statement of accounting for such REO Property,
including without limitation, (i) the Acquisition Date for the REO Property,
(ii) the date of disposition of the REO Property, (iii) the sale price and
related selling and other expenses, (iv) accrued interest (including interest
deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO
Property related, calculated from the Acquisition Date to the disposition date,
(v) final property operating statements, and (vi) such other information as the
Trustee (and the holder of the related B Note, if any, if in connection with an
A/B Mortgage Loan and the holder of the related Serviced Companion Mortgage
Loan, if in connection with a Loan Pair) may reasonably request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with
the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property, the
Special Servicer shall consult with counsel to determine how best to enforce
such rights in a manner consistent with the REMIC Provisions and shall not,
based on a Nondisqualification Opinion addressed to the Special Servicer and the
Trustee (the cost of which shall be an expense of the Trust) take any action
that could result in the failure of any REMIC Pool to qualify as a REMIC while
any Certificates are outstanding, unless such action has been approved by a vote
of 100% of each Class of Certificateholders (including the Class R-I, Class
R-II, Class R-III and Class R-EA Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Trustee and the Master Servicer on or
before noon (Eastern Time) on March 15 of each calendar year (or March 14 if a
leap year), commencing in March 2006, an Officer's Certificate stating, as to
the signer thereof, that (A) a review of the activities of the Special Servicer
during the preceding calendar year or portion thereof and of the performance of
the Special Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Special Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Special Servicer
shall deliver such Officer's Certificate to the Depositor and the Trustee by
April 7 of each calendar year. The Special Servicer shall forward a copy of each
such statement to the Rating Agencies. The Trustee shall forward a copy of each
such statement to the Luxembourg Paying Agent. Promptly after receipt of such
Officer's Certificate, the Depositor shall review the Officer's Certificate and,
if applicable, consult with the Special Servicer as to the nature of any
defaults by the Special Servicer in the fulfillment of any of the Special
Servicer's obligations hereunder.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before noon (Eastern Time) on March 15 of each calendar year (or March 14 if a
leap year), beginning with March 2006, the Special Servicer at its expense shall
cause a nationally
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recognized firm of Independent public accountants (who may also render other
services to the Special Servicer, as applicable) to furnish to the Trustee and
the Master Servicer (in electronic format) a statement to the effect that (a)
such firm has examined certain documents and records relating to the servicing
of the Mortgage Loans under this Agreement or the servicing of mortgage loans
similar to the Mortgage Loans under substantially similar agreements for the
preceding calendar year and (b) the assertion by management of the Special
Servicer, that it maintained an effective internal control system over the
servicing of such mortgage loans is fairly stated in all material respects,
based upon established criteria, which statement meets the standards applicable
to accountant's reports intended for general distribution; provided that each of
the Master Servicer and the Special Servicer shall not be required to cause the
delivery of such statement until April 15 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust Fund for the preceding calendar
year. The Special Servicer shall deliver such statement to the Depositor, each
Rating Agency, the Trustee, and, upon request, the Operating Adviser by April 7
of each calendar year (or by April 30 of each calendar year if the statement is
not required to be delivered until April 15). The Trustee shall promptly deliver
such statement to the Luxembourg Paying Agent. Promptly after receipt of such
report, the Depositor shall review the report and, if applicable, consult with
the Special Servicer as to the nature of any defaults by the Special Servicer in
the fulfillment of any of the Special Servicer's obligations hereunder.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to the business of the
Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interests in any Serviced Companion Mortgage
Loan or B Note). If the conditions to the proviso in the foregoing sentence are
not met, the Trustee may terminate the Special Servicer's servicing of the
Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special 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 Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation (including with
respect to any securities rated by a Rating Agency evidencing interests in any
Serviced Companion Mortgage Loan or B Note) shall have been obtained. Notice of
such resignation shall be given promptly by the Special Servicer to the Master
Servicer and the Trustee.
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(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
(d) Upon any resignation of the Special Servicer, it shall retain the
right to receive any and all Work-Out Fees payable in respect of Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note that became Rehabilitated
Mortgage Loans during the period that it acted as Special Servicer and that were
still Rehabilitated Mortgage Loans at the time of such resignation (and the
successor Special Servicer shall not be entitled to any portion of such Work-Out
Fees), in each case until such time (if any) as such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note again becomes a Specially Serviced Mortgage
Loan or are no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
The Special 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 Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, the Master Servicer
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 Special Servicer, with like effect as if
originally named as a party to this Agreement; (iii) the purchaser or transferee
has assets in excess of $15,000,000; (iv) such assignment and delegation is the
subject of a Rating Agency Confirmation; and (v) the Depositor consents to such
assignment and delegation, such consent not be unreasonably withheld.
Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in
accordance with Section 9.3 hereof.
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SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders, the holder of any B Note, the holder of any Serviced
Companion Mortgage Loan or the Trustee for any action taken or for refraining
from the taking of any action in good faith and using reasonable business
judgment; provided that this provision shall not protect the Special 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 hereunder or
by reason of negligent disregard of obligations and duties hereunder. The
Special Servicer and any director, officer, employee or agent of the Special
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
information and reports delivered by or at the direction of the Master Servicer
or any director, officer, employee or agent of the Master Servicer) respecting
any matters arising hereunder. The Special 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 Specially Serviced Mortgage Loans in
accordance with this Agreement; provided that the Special 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, the
holder of any B Note, the holder of any Serviced Companion Mortgage Loan and the
Trustee in the Specially Serviced Mortgage Loans, 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 (other than those that are connected with the routine
performance by the Special Servicer of its duties hereunder) shall be expenses
and costs of the Trust, and the Special Servicer shall be entitled to be
reimbursed therefor as a Servicing Advance, together with interest thereon, as
provided by Section 5.2 hereof. Notwithstanding any term in this Agreement, the
Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser which is in conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be liable for any error of judgment made in
good faith by any officer, unless it shall be proved that the Special Servicer
or such officer was negligent in ascertaining the pertinent facts. Neither the
Special Servicer, nor any director, officer, employee, agent or Affiliate, shall
be liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement. The Special Servicer shall be entitled to
rely on reports and information supplied to it by the Master Servicer and the
related Mortgagors and shall have no duty to investigate or confirm the accuracy
of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, or the Trustee in this Agreement. The Trust
shall indemnify and hold harmless the Special Servicer from any and all claims,
liabilities, costs, charges, fees or other expenses which relate to or arise
from any such
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breach of representation, warranty or covenant to the extent such amounts are
not recoverable from the party committing such breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine.
(e) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Master Servicer and the
Trustee, as the case may be, and held harmless against any loss, liability or
expense including reasonable attorneys' fees incurred in connection with any
legal action relating to the Master Servicer's, or the Trustee's, as the case
may be, respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Master Servicer and the Trustee, if a claim is made by a third party entitling
the Special Servicer to indemnification hereunder, whereupon the Master
Servicer, or the Trustee, in each case, to the extent the claim was made in
connection with its willful misfeasance, bad faith or negligence, shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
Special Servicer). Any failure to so notify the Master Servicer, or the Trustee
shall not affect any rights the Special Servicer may have to indemnification
hereunder or otherwise, unless the interest of the Master Servicer, or the
Trustee is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Master Servicer, or the
Trustee, as the case may be, pursuant to this paragraph to the Special Servicer
shall be paid from the Master Servicer's, or the Trustee's, as the case may be,
own funds, without reimbursement from the Trust therefor, except achieved
through subrogation as provided in this Agreement. Any
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expenses incurred or indemnification payments made by the Trustee, or the Master
Servicer shall be reimbursed by the party so paid, if a court of competent
jurisdiction makes a final judgment that the conduct of the Trustee, or the
Master Servicer, as the case may be, was (x) not culpable or (y) found to not
have acted with willful misfeasance, bad faith or negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent
of the Special Servicer (the "Special Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes against any and all claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments and any other costs, liabilities, fees and
expenses (collectively, "Special Servicer Losses") incurred in connection with
any legal action relating to this Agreement, any Mortgage Loans, any Serviced
Companion Mortgage Loans, any B Notes, any REO Property or the Certificates or
any exercise of any right under this Agreement reasonably requiring the use of
counsel or the incurring of expenses other than any loss, liability or expense
incurred by reason of the Special Servicer's willful misfeasance, bad faith or
negligence in the performance of duties hereunder. If such loss, liability or
expense relates to an A/B Mortgage Loan but does not relate to the related A
Note and does not relate primarily to the administration of the Trust or any
REMIC formed hereunder or the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC or to any
determination respecting the amount, payment or avoidance of any tax under the
REMIC provisions of the Code or the actual payment of any REMIC tax or expense,
then such indemnification shall be paid first out of collections on, and other
proceeds of, the related B Note and then out of collections on, and other
proceeds of, the Mortgage Loans. Notwithstanding the foregoing, if such loss,
liability or expense relates solely to a particular Serviced Pari Passu Mortgage
Loan (or another Mortgage Loan included in the Trust) or a particular Serviced
Companion Mortgage Loan and not any B Note, then such indemnification shall be
paid first out of collections on, and other proceeds of, such Serviced Pari
Passu Mortgage Loan, other Mortgage Loan or Serviced Companion Mortgage Loan, as
applicable, and then out of collections on, and other proceeds of, the Mortgage
Loans (and not out of proceeds of any related B Note).
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the Master Servicer, and any director, officer, employee
or agent or Controlling Person of the Trustee, the Depositor and the Master
Servicer, and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that the Trust or the Trustee, the
Depositor, or the Master Servicer may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Depositor, or the Master
Servicer shall immediately notify the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Specially Serviced Mortgage
Loans entitling the Trust or the Trustee, the Depositor, or the Master Servicer,
as the case may be, to indemnification hereunder, whereupon the Special Servicer
shall assume the defense of any such claim (with counsel reasonably satisfactory
to the Trustee, the Depositor, or the Master Servicer, as the case may be) 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 Special
Servicer shall not affect any rights the Trust
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or the Trustee, the Depositor, or the Master Servicer may have to
indemnification under this Agreement or otherwise, unless the Special Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
termination or resignation of the Special Servicer, or the Trustee. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Special Servicer was not
culpable or found to have acted with willful misfeasance, bad faith or
negligence.
(c) The initial Special Servicer and the Depositor expressly agree
that the only information furnished by or on behalf of the Special Servicer for
inclusion in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement is the information set forth in the paragraph under the caption
"SERVICING OF THE MORTGAGE LOANS - The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Special Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Special Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.25 RESERVED
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
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 Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide the
necessary information to the Master Servicer to allow the Master Servicer to
comply with the Mortgagor tax reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan
and any REO Property. The Special Servicer shall provide to the Master Servicer
copies of any such reports. The Master Servicer shall forward such reports to
the Trustee.
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SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that the
Master Servicer will be collecting all payments with respect to the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note (other than payments
with respect to REO Income). If, however, the Special Servicer should receive
any payments with respect to any Mortgage Loan (other than REO Income) it shall,
within one Business Day of receipt from the Mortgagor or otherwise of any
amounts attributable to payments with respect to or the sale of any Mortgage
Loan or any Specially Serviced Mortgage Loan, if any, (but not including REO
Income, which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if applicable,
to the order of the Master Servicer), to the Master Servicer, or (ii) deposit
such amounts, or cause such amounts to be deposited, in the Certificate Account.
The Special Servicer shall notify the Master Servicer of each such amount
received on or before the date required for the making of such deposit or
transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced
Mortgage Loan to which the amount is to be applied and the type of payment made
by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special Servicer
shall act in accordance with this Agreement and the provisions of the Code
relating to REMICs in order to create or maintain the status of any REMIC Pool
as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
Pool to take any action that would (i) endanger the status of any REMIC Pool as
a REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Master Servicer
and the Trustee have received a Nondisqualification Opinion (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such tax.
The Special Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) 60 days following the date on
which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that the Special Servicer is terminated pursuant to Section
9.30(b) or 9.30(c), respectively, and (iii) the effective date of any
resignation of the Special Servicer effected pursuant to and in accordance with
Section 9.21. The obligations and responsibilities of the Special Servicer
created hereby with respect to any Loan Pair (other than the obligation of the
Special Servicer to make payments to the Master Servicer as set forth in Section
9.28, the obligations of the Special Servicer pursuant to Sections 9.8 and 9.24
hereof and obligations under this Agreement that survive termination) shall
terminate on the date that is 60 days following the date on which the Trustee
has given written notice to the Special Servicer that this Agreement is
terminated with respect to the Special Servicer's obligations with respect to
such Loan Pair pursuant to Section 9.30(d). Notwithstanding the foregoing, with
respect to the 75
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Broad A/B Mortgage Loan, for so long as the related B Note holder is the
Controlling Holder (as defined in the related Intercreditor Agreement) it may
remove the Special Servicer (with respect to the servicing of the 75 Broad A/B
Mortgage Loan) at any time, for any reason whatsoever or for no reason, upon at
least 30 days prior notice to the Special Servicer and appoint a successor
Special Servicer for the A/B Mortgage Loan in accordance with Section 2.3(k) of
the related Intercreditor Agreement. Such B Note holder shall pay any costs and
expenses incurred by the Trust in connection with the removal and appointment of
a Special Servicer (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b) and the Special Servicer is removed
with respect to all of the Mortgage Loans).
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, the Master Servicer, or the Depositor within one (1) Business
Day following the date such amount was required to have been remitted under the
terms of this Agreement, (ii) the Special Servicer has failed to deposit into
any account any amount required to be so deposited or remitted under the terms
of this Agreement which failure continues unremedied for one Business Day
following the date on which such deposit or remittance was first required to be
made; (iii) the Special Servicer has failed to duly observe or perform in any
material respect any of the other covenants or agreements of the Special
Servicer set forth in this Agreement, and the Special Servicer has failed to
remedy such failure within thirty (30) days after written notice of such
failure, requiring the same to be remedied, shall have been given to the Special
Servicer by the Depositor or the Trustee; provided, however, that if the Special
Servicer certifies to the Trustee and the Depositor that the Special Servicer is
in good faith attempting to remedy such failure, and the Certificateholders
would not be materially and adversely affected thereby, such cure period will be
extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Depositor or the Trustee, provided,
however, that if the Special Servicer certifies to the Trustee and the Depositor
that the Special Servicer is in good faith attempting to remedy such failure,
such cure period may be extended to the extent necessary to permit the Special
Servicer to cure such failure; provided, however, that such cure period may not
exceed 90 days; (v) the Special Servicer is removed from S&P's approved special
servicer list and is not reinstated within 60 days and the ratings then assigned
by S&P to any Classes of Certificates are downgraded, qualified or withdrawn
(including, without limitation, being placed on "negative credit watch") in
connection with such removal; (vi) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Special Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; (vii) the Special Servicer
shall consent to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings relating to the
Special Servicer or of or relating to all or substantially all of its property;
or (viii) the Special Servicer thereof shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
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advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or (ix) a Special Servicing Officer receives actual knowledge that
Fitch has (i) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of Certificates or (ii) placed one or more Classes of Certificates
on "watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Fitch within 60 days
of the date that a Special Servicing Officer obtained such actual knowledge),
and, in the case of either of clauses (i) or (ii), citing servicing concerns
with the Special Servicer as the sole or material factor in such rating action.
Such termination shall be effective on the date that the Trustee specifies in a
written notice to the Special Servicer that the Special Servicer is terminated
due to the occurrence of one of the foregoing events and the expiration of any
applicable cure period or grace period specified above for such event. The
Operating Adviser shall have the right to appoint a successor if the Trustee
terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate the Special Servicer, with or without cause, provided that the
Operating Adviser shall appoint a successor Special Servicer who will (i) be
reasonably satisfactory to the Trustee and to the Depositor, and (ii) execute
and deliver to the Trustee an agreement, in form and substance reasonably
satisfactory to the Trustee, whereby the successor Special Servicer agrees to
assume and perform punctually the duties of the Special Servicer specified in
this Agreement; and provided, further, that the Trustee shall have received
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing interests in any Serviced Companion Mortgage Loan or B
Note) from each Rating Agency prior to the termination of the Special Servicer.
The Special Servicer shall not be terminated pursuant to this subsection (c)
until a successor Special Servicer shall have been appointed. The Operating
Adviser shall pay any costs and expenses incurred by the Trust in connection
with the removal and appointment of a Special Servicer (unless such removal is
based on any of the events or circumstances set forth in Section 9.30(b)).
(d) Notwithstanding the other provisions of this Section 9.30, (A) if
any Event of Default on the part of the Special Servicer occurs that affects a
Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Fitch, if the Trustee shall receive notice from Fitch to the effect
that the continuation of the Special Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any class of certificates issued in such securitization, and in either case,
the Special Servicer is not otherwise terminated in accordance with this Section
9.30, then the holder of the affected Serviced Companion Mortgage Loan may
require the Trustee to terminate the duties and obligations of the Special
Servicer with respect to the subject Loan Pair only, but as to no other Mortgage
Loan; and, in such event, subject to the applicable consultation rights of any
particular related Serviced Companion Mortgage Loan under the related Loan Pair
Intercreditor Agreement, the Operating Adviser shall appoint (or, in the event
of the failure of the Operating Adviser to so appoint, the Trustee shall
appoint), within 30 days of such Serviced Companion Mortgage Loan holder's
request, a replacement special servicer with respect to the related Loan Pair.
Any appointment of a replacement special servicer with respect to a Loan Pair at
the request of a related Serviced Companion Mortgage Loan holder under this
Section 9.30(d) shall be conditioned upon such Serviced Companion Mortgage Loan
holder obtaining a Rating Agency Confirmation (such
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Rating Agency Confirmation to be an expense of the requesting Serviced Companion
Mortgage Loan holder). Any replacement special servicer appointed at the request
of a Serviced Companion Mortgage Loan holder in accordance with this Section
9.30(d) shall be responsible for all duties, and shall be entitled to all
compensation, of the Special Servicer under this Agreement with respect to the
subject Loan Pair. If a replacement special servicer is appointed with respect
to a Loan Pair at the request of a Serviced Companion Mortgage Loan holder in
accordance with this Section 9.30(d) (any such replacement special servicer, a
"Loan Pair-Specific Special Servicer"), such that there are multiple parties
acting as Special Servicer hereunder, then, unless the context clearly requires
otherwise: (i) when used in the context of imposing duties and obligations on
the Special Servicer hereunder or the performance of such duties and
obligations, the term "Special Servicer" shall mean the related Loan
Pair-Specific Special Servicer, insofar as such duties and obligations relate to
a Loan Pair as to which a Loan Pair-Specific Special Servicer has been
appointed, and shall mean the General Special Servicer, in all other cases
(provided that, in Section 9.18 and Section 9.19, the term "Special Servicer"
shall mean each Loan Pair-Specific Special Servicer and the General Special
Servicer); (ii) when used in the context of identifying the recipient of any
information, funds, documents, instruments and/or other items, the term "Special
Servicer" shall mean the related Loan Pair-Specific Special Servicer, insofar as
such information, funds, documents, instruments and/or other items relate to a
Loan Pair as to which a Loan Pair-Specific Special Servicer has been appointed
in accordance with this Section 9.30(d), and shall mean the General Special
Servicer, in all other cases; (iii) when used in the context of granting the
Special Servicer the right to purchase Specially Serviced Mortgage Loans
pursuant to Section 9.36, the term "Special Servicer" shall mean the related
Loan Pair-Specific Special Servicer, if such Specially Serviced Mortgage Loan is
part of a Loan Pair as to which a Loan Pair-Specific Special Servicer has been
appointed in accordance with this Section 9.30(d), and shall mean the General
Special Servicer, in all other cases; (iv) when used in the context of granting
the Special Servicer the right to purchase all of the Mortgage Loans and any REO
Properties remaining in the Trust pursuant to Section 10.1(b), the term "Special
Servicer" shall mean the General Special Servicer only; (v) when used in the
context of granting the Special Servicer any protections, limitations on
liability, immunities and/or indemnities hereunder, the term "Special Servicer"
shall mean each Loan Pair-Specific Special Servicer and the General Special
Servicer; and (vi) when used in the context of requiring indemnification from,
imposing liability on, or exercising any remedies against, the Special Servicer
for any breach of a representation or warranty hereunder or for any negligence,
bad faith or willful misconduct in the performance of duties and obligations
hereunder or any negligent disregard of such duties and obligations or otherwise
holding the Special Servicer responsible for any of the foregoing, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer or
the General Special Servicer, as applicable. References in this Section 9.30(d)
to "General Special Servicer" means the Person performing the duties and
obligations of Special Servicer with respect to the Mortgage Loans (exclusive of
each and every Loan Pair as to which a Loan Pair-Specific Special Servicer has
been appointed).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee no
later than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month in
which the final Distribution Date will occur. Upon any such termination, the
rights and
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duties of the Special Servicer (other than the rights and duties of the Special
Servicer pursuant to Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate
and the Special Servicer shall transfer to the Master Servicer the amounts
remaining in each REO Account and shall thereafter terminate each REO Account
and any other account or fund maintained with respect to the Specially Serviced
Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of such designation, and such successor Special Servicer shall
have assumed the Special Servicer's obligations and responsibilities, as set
forth in an agreement substantially in the form hereof, with respect to the
Specially Serviced Mortgage Loans. The Trustee or other successor Special
Servicer may not succeed the Special Servicer as Special Servicer until and
unless it has satisfied the provisions that would apply to a Person succeeding
to the business of the Special Servicer pursuant to Section 9.20 hereof. The
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Special Servicer, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination.
The Special Servicer agrees to cooperate with the Trustee in effecting the
termination of the Special Servicer's responsibilities and rights hereunder as
Special Servicer including, without limitation, providing the Trustee all
documents and records in electronic or other form reasonably requested by it to
enable the successor Special Servicer designated by the Trustee to assume the
Special Servicer's functions hereunder and to effect the transfer to such
successor for administration by it of all amounts which shall at the time be or
should have been deposited by the Special Servicer in any REO Account and any
other account or fund maintained or thereafter received with respect to the
Specially Serviced Mortgage Loans. On the date specified in a written notice of
termination given to the Special Servicer pursuant to the second sentence of
Section 9.30(a), all authority, power and rights of the Special Servicer under
this Agreement with respect to the applicable Serviced Pari Passu Mortgage Loan,
whether such Mortgage Loan is a Specially Serviced Mortgage Loan or otherwise,
shall terminate. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(v) or (ix), and if the Special Servicer provides the Trustee
with the appropriate "request for proposal" materials within five Business Days
after receipt of such written notice of termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
Special Servicer) solicit good faith bids for the rights to be appointed as
Special Servicer under this Agreement from at least three but no more than five
Qualified Bidders or, if three Qualified Bidders cannot be located, then from as
many persons as the Trustee can determine are Qualified Bidders. At the
Trustee's request, the Special Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids. In no event shall the Trustee be
responsible if less
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than three Qualified Bidders submit bids for the right to service the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Special Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating Agency Confirmation (including with respect to any securities evidencing
interests in the Serviced Companion Mortgage Loans) in connection with such
appointment provided that, with respect to the 75 A/B Broad Mortgage Loan, for
as long as the B Note holder is the Controlling Holder (as defined in the
related Intercreditor Agreement) it may appoint the successor Special Servicer
in accordance with Section 2.3(c) of the related Intercreditor Agreement. The
Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Special Servicer pursuant to the terms hereof not later than 30 days
after the termination of the Special Servicer hereunder, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the Trustee no later than 10:00 a.m. New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within 30 days after the termination of the Special Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Trustee shall have no further obligations under Section 9.31(c) and may act or
may select another successor to act as Special Servicer hereunder in accordance
with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer one (1) Business Day after the
Determination Date for each month, the CMSA Special Servicer Loan File in such
electronic format as is mutually acceptable to the Master Servicer and the
Special Servicer and in CMSA format. The Master Servicer may use such reports or
information contained therein to prepare its reports and the Master Servicer
may, at its option, forward such reports directly to the Depositor and the
Rating Agencies.
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(b) The Special Servicer shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser, and the Master Servicer no later than the tenth
Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Trustee at the reasonable request in writing of the Master Servicer or the
Trustee, any information in its possession with respect to the Specially
Serviced Mortgage Loans which the Master Servicer or Trustee, as the case may
be, shall require in order for the Master Servicer or the Trustee to comply with
its obligations under this Agreement; provided that the Special Servicer shall
not be required to take any action or provide any information that the Special
Servicer determines will result in any material cost or expense to which it is
not entitled to reimbursement hereunder or will result in any material liability
for which it is not indemnified hereunder. The Master Servicer shall provide the
Special Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Special Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the Master Servicer a statement
setting forth the status of each REO Account as of the close of business on such
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by the Special Servicer have
been made (or, if any required distribution has not been made by the Special
Servicer, specifying the nature and status thereof) and showing, for the period
from the day following the preceding Special Servicer Remittance Date to such
Special Servicer Remittance Date, the aggregate of deposits into and withdrawals
from each REO Account for each category of deposit specified in Section 5.1 of
this Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and,
to the extent obtained, to deliver to the Master Servicer, the Rating Agencies
and the Operating Adviser (and the B Note holder, with respect to the A/B
Mortgage Loan), on or before April 15 of each year, commencing with April 15,
2005, (i) copies of the prior year operating statements and quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll available for each Mortgaged Property,
and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy
with respect to each Mortgaged Property covered by the operating statements
delivered above; provided, that, with respect to any Mortgage Loan that becomes
a Specially Serviced Mortgage Loan prior to April 15, 2005 and for which the
items in clause (i) and (ii) above have not been delivered, the Special Servicer
shall use reasonable efforts to obtain and, to the extent obtained, deliver such
items to the Master Servicer, the Rating Agencies and the Operating Adviser (and
the B Note holder with respect to the A/B mortgage Loan) as soon as possible
after receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor, and the Trustee all such other information with respect to the
Specially Serviced Mortgage Loans
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at such times and to such extent as the Master Servicer, the Trustee, or the
Depositor may from time to time reasonably request; provided, however, that the
Special Servicer shall not be required to produce any ad hoc non-standard
written reports with respect to such Mortgage Loans except if any Person (other
than the Trustee) requesting such report pays a reasonable fee to be determined
by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection Report of
each Specially Serviced Mortgage Loan in accordance with Section 9.4(b) to the
Operating Adviser (and the B Note holder with respect to the A/B mortgage Loan).
(h) The Special Servicer shall prepare a report (the "Asset Status
Report") recommending the taking of certain actions for each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan and deliver such Asset Status Report
to the Operating Adviser and the Master Servicer not later than 45 days after
the servicing of such Mortgage Loan is transferred to the Special Servicer. Such
Asset Status Report shall set forth the following information to the extent
reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by reason
of any Phase I Environmental Assessment and any additional environmental testing
contemplated by Section 9.12(c)), consistent with the Servicing Standard, that
are applicable to the exercise of remedies set forth herein and to the
enforcement of any related guaranties or other collateral for the related
Specially Serviced Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer's recommended
action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the calculation
thereof (which the Special Servicer may satisfy by providing a copy of the most
recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer
deems relevant in light of the Servicing Standard.
If (i) the Operating Adviser affirmatively approves in writing an
Asset Status Report, (ii) after ten Business Days from receipt of an Asset
Status Report the Operating Adviser does not object to such Asset Status Report
or (iii) within ten (10) Business Days after receipt of an Asset Status Report
the Operating Adviser objects to such Asset Status Report and the Special
Servicer makes a determination in accordance with the Servicing Standard that
such objection is not in the best interest of all the Certificateholders, as a
collective whole, the Special Servicer shall take the recommended actions
described in the Asset Status Report. If within ten (10) Business Days after
receipt of an Asset Status Report the Operating Adviser objects to such Asset
Status Report and the Special Servicer does not make a determination in
accordance with
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the Servicing Standard that such objection is not in the best interest of all
the Certificateholders, as a collective whole, then the Special Servicer shall
revise such Asset Status Report as soon as practicable thereafter, but in no
event later than 30 days after the objection to the Asset Status Report by the
Operating Adviser. The Special Servicer shall revise such Asset Status Report as
provided in the prior sentence until the earliest of (a) the delivery by the
Operating Adviser of an affirmative approval in writing of such revised Asset
Status Report, (b) the failure of the Operating Adviser to disapprove such
revised Asset Status Report in writing within ten (10) Business Days of its
receipt thereof; or (c) the passage of ninety (90) days from the date of
preparation of the initial version of the Asset Status Report. Following the
earliest of such events, the Special Servicer shall implement the recommended
action as outlined in the most recent version of such Asset Status Report
(provided that the Special Servicer shall not take any action that is contrary
to applicable law or the terms of the applicable Mortgage Loan documents). The
Special Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement the new action in such revised report so long
as such revised report has been prepared, reviewed and either approved or not
rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Operating Adviser may reject such report if
(A) the Special Servicer has reasonably determined that failure to take such
action would materially and adversely affect the interests of the
Certificateholders, as a collective whole, and (B) it has made a reasonable
effort to contact the Operating Adviser. The Special Servicer may not take any
action inconsistent with an Asset Status Report that has been adopted as
provided above, unless such action would be required in order to act in
accordance with the Servicing Standard. If the Special Servicer takes any action
inconsistent with an Asset Status Report that has been adopted as provided
above, the Special Servicer shall promptly notify the Operating Adviser of such
inconsistent action and provide a reasonably detailed explanation of the reasons
therefor.
The Special Servicer shall deliver to the Master Servicer, the
Operating Adviser and each Rating Agency a copy of each Asset Status Report that
has been adopted as provided above, in each case with reasonable promptness
following such adoption.
Notwithstanding anything herein to the contrary: (i) the Special Servicer shall
have no right or obligation to consult with or to seek and/or obtain consent or
approval from any Operating Adviser prior to acting (and provisions of this
Agreement requiring such consultation, consent or approval shall be of no
effect) during the period following any resignation or removal of an Operating
Adviser and before a replacement is selected; and (ii) no advice, direction or
objection from or by the Operating Adviser, as contemplated by Section 9.39 or
any other provision of this Agreement, may (and the applicable Special Servicer
shall ignore and act without regard to any such advice, direction or objection
that such Special Servicer has determined, in its reasonable, good faith
judgment, would): (A) require or cause such Special Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the applicable Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
the Excess Interest Grantor Trust, (C) expose the Trust, the Depositor, the
Master Servicer, the Special Servicer, the Trustee or any of their respective
Affiliates, members, managers, officers, directors, employees or agents, to any
material claim, suit or liability or
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(D) materially expand the scope of the Master Servicer's or Special Servicer's
responsibilities under this Agreement.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER
AND TRUSTEE.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the Master
Servicer, the Trustee, to enable it to perform its duties under this Agreement;
provided that no such request shall (i) require or cause the Special Servicer to
violate the Code, any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the servicing standards set
forth in this Agreement and to maintain the REMIC status of any REMIC Pool or
(ii) expose the Special Servicer, the Trust, or the Trustee to liability or
materially expand the scope of the Special Servicer's responsibilities under
this Agreement. In addition, the Special Servicer shall notify the Master
Servicer of all expenditures incurred by it with respect to the Specially
Serviced Mortgage Loans which are required to be made by the Master Servicer as
Servicing Advances as provided herein, subject to the provisions of Section 4.4
hereof. The Special Servicer shall also remit all invoices relating to Servicing
Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters (unless such reports, recommendations and analyses have
previously been delivered by the Special Servicer to the Operating Adviser
pursuant to Section 9.32), the expense of which shall not be an expense of the
Trust unless otherwise reimbursable pursuant to this Agreement:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of the
Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
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(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The holder of Certificates evidencing the greatest percentage
interest in the Controlling Class, the Special Servicer and each Seller as to
those Mortgage Loans sold to the Depositor by such Seller only (in such
capacity, together with any assignee, the "Option Holder") shall, in that order,
have the right, at its option (the "Option"), to purchase a Mortgage Loan (other
than a Non-Serviced Mortgage Loan that is subject to a comparable option under
the related Other Companion Loan Pooling and Servicing Agreement) from the Trust
at a price equal to the Option Purchase Price upon receipt of notice from the
Special Servicer that such Mortgage Loan has become at least 60 days delinquent
as to any monthly debt service payment (or is delinquent as to its Balloon
Payment); provided, however, that with respect to an A Note, the Option Holder's
rights under this Section 9.36 are subject to the rights of the holder of the
related B Note to purchase the A Note pursuant to the terms of the related
Intercreditor Agreement. The Option is exercisable, subject to Section 2.3, from
that date until terminated pursuant to clause (e) below, and during that period
the Option shall be exercisable in any month only during the period from the
10th calendar day of such month through the 25th calendar day, inclusive, of
such month. The Trustee on behalf of the Trust shall be obligated to sell such
Mortgage Loan upon the exercise of the Option (whether exercised by the original
holder thereof or by a holder that acquired such Option by assignment), but
shall have no authority to sell such Mortgage Loan other than in connection with
the exercise of an Option (or in connection with a repurchase of a Mortgage Loan
under Article II, an optional termination pursuant to Section 10.1 or a
qualified liquidation of a REMIC Pool) or if such Mortgage Loan is an A Note, to
the holder of the related B Note pursuant to the terms of the related
Intercreditor Agreement. Any Option Holder that exercises the Option shall be
required to purchase the applicable Mortgage Loan on the 4th Business Day after
such exercise. If any Option Holder desires to waive its right to exercise the
Option, then it shall so notify the Trustee in writing, and the Trustee shall
promptly notify the next party eligible to hold the Option set forth above of
its rights hereunder. Any of the parties eligible to hold the Option set forth
above may at any time notify the Trustee in writing of its desire to exercise
the Option, and the Trustee shall promptly notify (i) the current Option Holder
(and the other parties eligible to hold the Option) and (ii) solely with respect
to an Option to purchase an A Note, the holder of the related B Note, of such
party's desire to exercise the Option; provided that none of the Trustee, the
Master Servicer or the Special Servicer shall disclose the Option Purchase Price
to the holder of such related B Note. If the Option Holder neither (i) exercises
the Option nor (ii) surrenders its right to exercise the Option within 3
Business Days of its receipt of that notice, then the Option Holder's right to
exercise the Option shall lapse, and the Trustee shall promptly notify the next
party eligible to hold the Option (and
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the other parties eligible to hold the Option) of its rights thereunder. The
Certificate Registrar shall notify the Trustee as to the identity of the holder
of Certificates evidencing the greatest percentage interest in the Controlling
Class for purposes of determining an Option Holder.
(b) The purchase price in connection with the exercise of the Option
(the "Option Purchase Price") shall be an amount equal to the fair value of the
related Mortgage Loan, as determined by the Special Servicer. Prior to the
Special Servicer's determination of fair value referred to above, the fair value
of a Mortgage Loan shall be deemed to be an amount equal to the Purchase Price
plus (i) any prepayment penalty or yield maintenance charge then payable upon
the prepayment of such Mortgage Loan and (ii) the reasonable fees and expenses
of the Special Servicer, the Master Servicer and the Trustee incurred in
connection with the sale of the Mortgage Loan. The Special Servicer shall
determine the fair value of a Mortgage Loan on the later of (A) as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon
the Balloon Payment becoming delinquent and (B) the date that is 75 days after
the Special Servicer's receipt of the Servicer Mortgage File relating to such
Mortgage Loan, and the Special Servicer shall promptly notify the Option Holder
(and the Trustee and each of the other parties set forth above that could become
the Option Holder) of (i) the Option Purchase Price and (ii) if such Mortgage
Loan is an A Note, that the A Note is subject to the terms of the related
Intercreditor Agreement and that any purchaser of the A Note will be subject to
such Intercreditor Agreement. The Special Servicer is required to recalculate
the fair value of the Mortgage Loan if there has been a material change in
circumstances or the Special Servicer has received new information (including,
without limitation, any cash bids received from the holder of the related B Note
in connection with an A Note), either of which has a material effect on the fair
value, provided that the Special Servicer shall be required to recalculate the
fair value of the Mortgage Loan if the time between the date of last
determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months; any views on fair value expressed by Independent investors
in mortgage loans comparable to the Mortgage Loan (provided that the Special
Servicer shall not be obligated to solicit such views); the period and amount of
any delinquency on the affected Mortgage Loan; whether to the Special Servicer's
actual knowledge, the Mortgage Loan is in default to avoid a prepayment
restriction; the physical condition of the related Mortgaged Property; the state
of the local economy; the expected recoveries from the Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of the
Option being exercised; and the Trust's obligation to dispose of any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders, but in no event later than the three-year
period (or such extended period) specified in Section 9.15. If the Mortgage Loan
as to which the Option relates is a Serviced Pari Passu Mortgage Loan, then the
Option Holder, in connection with its exercise of such option, shall also be
required to purchase the related Serviced Companion Mortgage Loan under the
Other Pooling and Servicing Agreement or the related Intercreditor Agreement.
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Pursuant to the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement, if the holder of the option thereunder repurchases a Non-Serviced
Companion Mortgage Loan in connection with its exercise of such option, then the
holder of the option shall also be required to purchase the related Non-Serviced
Mortgage Loan, but only if set forth in such Non-Serviced Mortgage Loan Pooling
and Servicing Agreement. If the Mortgage Loan as to which the Option relates is
a Non-Serviced Mortgage Loan, and the party exercising the purchase option under
the Other Companion Loan Pooling and Servicing Agreement in respect of the
related Non-Serviced Companion Mortgage Loan is not required thereunder to
simultaneously purchase the related Non-Serviced Mortgage Loan held by the Trust
upon a purchase of the Non-Serviced Companion Mortgage Loan, then the Special
Servicer shall calculate the Option Purchase Price of the Non-Serviced Mortgage
Loan based upon the fair market value calculation performed by the special
servicer or other party under the Other Companion Loan Pooling and Servicing
Agreement (upon which the Special Servicer may rely), to the extent provided to
the Special Servicer.
(c) Any Option relating to a Mortgage Loan shall be assignable to a
third party (including, without limitation, in connection with an A Note, the
holder of the related B Note and in connection with a Serviced Pari Passu
Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan) by
the Option Holder at its discretion at any time after its receipt of notice from
the Special Servicer that an Option is exercisable with respect to a specified
Mortgage Loan, and upon such assignment such third party shall have all of the
rights granted to the Option Holder hereunder in respect of the Option. Such
assignment shall only be effective upon written notice (together with a copy of
the executed assignment and assumption agreement) being delivered to the
Trustee, the Master Servicer and the Special Servicer, and none of such parties
shall be obligated to recognize any entity as an Option Holder absent such
notice.
(d) If the Special Servicer, the holder of Certificates representing
the greatest percentage interest in the Controlling Class or an Affiliate of
either thereof elects to exercise the Option, the Trustee shall be required to
determine whether the Option Purchase Price constitutes a fair price for the
Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraisal or other expert in real estate matters selected by the
Trustee with reasonable care and retained by the Trustee at the expense of the
party exercising the Option. The Trustee may also rely on the most recent
Appraisal of the related Mortgaged Property that was prepared in accordance with
this Agreement. If the Trustee were to determine that the Option Purchase Price
does not constitute a fair price, then the Special Servicer shall redetermine
the fair value taking into account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable as set
forth in clause (a) above (or if exercised, but the purchase of the related
Mortgage Loan has not yet occurred, shall terminate and be of no further force
or effect) if the Mortgage Loan to which it relates is no longer delinquent as
set forth above because the Mortgage Loan has (i) become a Rehabilitated
Mortgage Loan, (ii) been subject to a workout arrangement, (iii) been foreclosed
upon or otherwise resolved (including by a full or discounted pay-off) or (iv)
been purchased by the related Seller pursuant to Section 2.3. In addition, the
Option with respect to an A Note shall
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terminate upon the purchase of the A Note by the holder of the related B Note
pursuant to the related Intercreditor Agreement.
(f) Unless and until an Option Holder exercises an Option, the Special
Servicer shall continue to service and administer the related Mortgage Loan in
accordance with the Servicing Standard and this Agreement, and shall pursue such
other resolution or recovery strategies, including workout or foreclosure, as is
consistent with this Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class may elect the Operating Adviser. The Operating Adviser
shall be elected for the purpose of receiving reports and information from the
Special Servicer in respect of the Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is Cadim TACH, Inc. The Controlling
Class shall give written notice to the Trustee and the Master Servicer of the
appointment of any subsequent Operating Adviser (in order to receive notices
hereunder). If a subsequent Operating Adviser is not so appointed, an election
of an Operating Adviser also shall be held. Notice of the meeting of the Holders
of the Controlling Class shall be mailed or delivered to each Holder by the
Trustee, not less than 10 nor more than 60 days prior to the meeting. The notice
shall state the place and the time of the meeting, which may be held by
telephone. A majority of Certificate Balance of the Certificates of the then
Controlling Class, present in person or represented by proxy, shall constitute a
quorum for the nomination of an Operating Adviser. At the meeting, each Holder
shall be entitled to nominate one Person to act as Operating Adviser. The
Trustee shall cause the election of the Operating Adviser to be held as soon
thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Trustee on or prior to
the date of such election. Immediately upon receipt by the Trustee of votes
(which have not been rescinded) from the Holders of Certificates representing
more than 50% of the Certificate Balance of the Certificates of the then
Controlling Class which are cast for a single Person, such Person shall be, upon
such Person's acceptance, the Operating Adviser. The Trustee shall promptly
notify the Trustee of the identity of the Operating Adviser. Until an Operating
Adviser is elected by Holders of Certificates representing more than 50% of the
Certificate Balance of the Certificates of the then Controlling Class or in the
event that an Operating Adviser shall have resigned or been removed and a
successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Trustee, of more than 50% of the
Certificate Balance of the Holders of the Certificates of the then Controlling
Class.
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(e) The Trustee shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Trustee
shall be conclusive. Notwithstanding any other provisions of this Section 9.37,
the Trustee may make such reasonable regulations as it may deem advisable for
any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
(g) Notwithstanding anything to the contrary set forth in this
Agreement, the Master Servicer, the Special Servicer and the Operating Adviser
acknowledge that with respect to the 75 Broad A/B Mortgage Loan, pursuant to the
terms of the related Intercreditor Agreement, so long as the B Note holder or
any of its affiliates is the "Controlling Holder" (as such term is defined in
the related Intercreditor Agreement), the Controlling Holder (as such term is
defined in the related Intercreditor Agreement) shall be entitled to exercise
the rights and powers granted to the Operating Adviser herein with respect to
the 75 Broad A/B Mortgage Loan, as applicable, and that all references in this
Agreement to the term "Operating Adviser" and to the Operating Adviser appointed
pursuant to Section 9.37(a) shall be deemed (solely with respect to the 75 Broad
A/B Mortgage Loan) to refer to the Controlling Holder (as such term is defined
in the related Intercreditor Agreement) (and notwithstanding anything to the
contrary set forth in this Agreement, the Master Servicer, the Special Servicer
and the Operating Adviser acknowledge that with respect to the Richmond Square
A/B Mortgage Loan, pursuant to the terms of the related Intercreditor Agreement,
so long as the B Note holder or any of its affiliates is the "Controlling
Holder" (as such term is defined in the related Intercreditor Agreement), the
Controlling Holder (as such term is defined in the related Intercreditor
Agreement) shall be entitled to exercise the rights and powers granted to the
Operating Adviser herein with respect to the Richmond Square A/B Mortgage Loan,
as applicable, and that all references in this Agreement to the term "Operating
Adviser" and to the Operating Adviser appointed pursuant to Section 9.37(a)
shall be deemed (solely with respect to the Richmond Square A/B Mortgage Loan)
to refer to the Controlling Holder (as such term is defined in the related
Intercreditor Agreement)). Notwithstanding the foregoing, the Operating Adviser
designated by the Certificateholders shall also receive all notices and reports
delivered to the Operating Adviser appointed pursuant to the related
Intercreditor Agreement. Notwithstanding the foregoing, nothing herein is
intended nor shall be construed to limit the Operating Adviser's right to
consult (on a non-binding basis) with the Special Servicer with respect to any
Mortgage Loan including the 75 Broad A/B Mortgage Loan or the Richmond Square
A/B Mortgage Loan.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the holder of any
Serviced Companion Mortgage Loan, the holder of any B Note or the
Certificateholders (other than a Controlling Class Certificateholder) for any
action taken, or for refraining from the taking of any action. By its acceptance
of a Certificate, each Certificateholder (and Certificate Owner) confirms its
understanding that the Operating Adviser may take actions that favor the
interests of one or more
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Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and each holder of a
Serviced Companion Mortgage Loan and B Note (if any) and each Certificateholder
(and Certificate Owner) agrees to take no action against the Operating Adviser
based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. Notwithstanding any other
provision of this Agreement (but subject to the penultimate paragraph of this
section 9.39), the Operating Adviser may advise the Special Servicer with
respect to the following actions of the Special Servicer and the Special
Servicer will not be permitted to take or consent to the Master Servicer taking
any of the following actions unless and until it has notified the Operating
Adviser in writing and such Operating Adviser has not objected in writing (i)
within 5 Business Days of having been notified thereof in respect of actions
relating to non-Specially Serviced Mortgage Loans and (ii) within 10 Business
Days of having been notified thereof in respect of actions relating to Specially
Serviced Mortgage Loans and in either case, having been provided with all
reasonably requested information with respect thereto (it being understood and
agreed that (a) the Special Servicer shall be entitled to conclusively rely on
the determination of the Operating Adviser made in connection with such approval
or disapproval contemplated by clause (xii) below (subject to the operation of
the Servicing Standard and the penultimate paragraph of Section 9.39) and (b) if
such written objection has not been received by the Special Servicer within such
5 Business Day or 10 Business Day period, as applicable, then the Operating
Adviser's approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term or other material term of a
Mortgage Loan or a modification consisting of the extension of the original
Maturity Date of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan (other than
upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into compliance
with Environmental Laws;
(v) any release of or acceptance of substitute or additional
collateral for a Mortgage Loan;
(vi) any acceptance of a discounted payoff;
(vii) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause;
(viii) any acceptance or consent to acceptance of an assumption
agreement releasing a Mortgagor from liability under a Mortgage Loan;
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(ix) any release of collateral for a Mortgage Loan (other than
upon satisfaction of, such Mortgage Loan);
(x) any franchise changes or management company changes for which
the Special Servicer is required to consent;
(xi) releases of any Escrow Accounts, Reserve Accounts or Letters
of Credit that are not in compliance with the related Mortgage Loan documents;
and
(xii) any determination as to whether any type of property-level
insurance is required under the terms of any Mortgage Loan, is available at
commercially reasonable rates, is available for similar properties in the area
in which the related Mortgaged Property is located or any other determination or
exercise of discretion with respect to property-level insurance.
With respect to items (vii), (viii) and (ix), the Operating Adviser
shall be subject to the same time periods for advising the Special Servicer with
respect to any such matters as are afforded to the Special Servicer pursuant to
Section 8.7, which periods shall be co-terminous with those of Special Servicer.
In addition, the Operating Adviser may direct the Trustee to remove the Special
Servicer at any time upon the appointment and acceptance of such appointment by
a successor to the Special Servicer; provided that, prior to the effectiveness
of any such appointment, the Trustee shall have received Rating Agency
Confirmation from each Rating Agency. The Operating Adviser shall pay any costs
and expenses incurred by the Trust in connection with the removal and
appointment of a Special Servicer (unless such removal is based on any of the
events or circumstances set forth in Section 9.30(b)).
Notwithstanding anything herein to the contrary, no advice, direction
or objection from the Operating Adviser, as contemplated by this Section 9.39 or
elsewhere, may (and the Master Servicer and Special Servicer, as applicable,
shall ignore and act without regard to any such advice, direction or objection
that the Master Servicer or Special Servicer, as applicable, has determined, in
its reasonable, good faith judgment, will) require or cause the Master Servicer
or Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Master Servicer's and Special Servicer's obligation to act
in accordance with the Servicing Standard.
The Master Servicer (with respect to any Non-Serviced Mortgage Loan
that is not a "Specially Serviced Mortgage Loan" under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement) or Special Servicer (with respect
to any Non-Serviced Mortgage Loan that is a "Specially Serviced Mortgage Loan"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement),
as applicable, is authorized to exercise the rights and powers of the Trustee,
as holder of the Mortgage Note for each of the Non-Serviced Mortgage Loans,
under each of the related Non-Serviced Mortgage Loan Intercreditor Agreements
and Non-Serviced Mortgage Loan Pooling and Servicing Agreements to the extent
set forth in this Agreement. The Master Servicer or Special Servicer, as
applicable, shall be subject to the same limitations, constraints and
restrictions in exercising such rights and powers as would be applicable to the
Trustee, in its capacity as holder of the Mortgage Note for the applicable
Non-Serviced Mortgage Loan and shall be further subject to such consultation or
approval rights of the Operating Adviser under this Section 9.39 as would be
applicable if such Non-Serviced
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Mortgage Loan were serviced under this Agreement. Subject to any section of the
applicable Non-Serviced Mortgage Loan Intercreditor Agreement that specifically
addresses a particular matter with respect to a Non-Serviced Mortgage Loan, if
the Trustee is requested to take any action in its capacity as holder of the
Mortgage Note for such Non-Serviced Mortgage Loan, the Trustee will notify in
writing the Master Servicer or Special Servicer, as applicable, and, subject to
Section 7.1, act in accordance with the instructions of, such party to the
extent set forth in this Agreement; provided, that the Trustee shall not be
required to take any action at the direction of the Master Servicer or Special
Servicer, as applicable, that is not permitted under applicable law or the terms
of the related Non-Serviced Mortgage Loan Intercreditor Agreement and
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding the
foregoing, any such party may only exercise any purchase option or cure rights
with respect to a Non-Serviced Companion Mortgage Loan in its individual
capacity and not on behalf of the Trust.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.
With respect to each A/B Mortgage Loan (if any), the holder of the B
Note shall have such consent rights, cure rights, rights to remove the Special
Servicer or consultation rights and shall be entitled to such reports, during
the specified time periods, as are set forth in the related Intercreditor
Agreement.
Notwithstanding the foregoing, if the Master Servicer or Special
Servicer, as applicable, determines that immediate action is necessary to
protect the interest of the Certificateholders and the holder of any related
Serviced Companion Mortgage Loan (as a collective whole), then the Master
Servicer or Special Servicer, as applicable may take any such action without
waiting for the response of the holder of the B Note provided for in the related
Intercreditor Agreement.
In addition, with respect to any A/B Mortgage Loan, to the extent
provided for in the related Intercreditor Agreement, the holder of the B Note
may direct the Master Servicer or Special Servicer, as applicable, to take, or
to refrain from taking, such actions as the holder of the B Note may deem
advisable or as to which provision is otherwise made herein. Upon reasonable
request, the Master Servicer or Special Servicer, as applicable, shall, with
respect to any A/B Mortgage Loan, provide the holder of the B Note with any
information in the Master Servicer's or Special Servicer's, as applicable,
possession with respect to such matters, including its reasons for determining
to take a proposed action.
In the event that the holder of the B Note shall direct the Master
Servicer or the Special Servicer to take any action (other than those provided
for in the related Intercreditor Agreement), the Master Servicer or the Special
Servicer shall be entitled to receive reimbursement from collections on and
other proceeds of the B Note for (i) its reasonable out-of-pocket expenses
incurred in taking such action and (ii) to the extent that such action
constitutes an extraordinary action not in the ordinary course of administering
and servicing such mortgage loan, other reasonable costs incurred by the Master
Servicer or the Special Servicer in taking such action. The Master Servicer or
the Special Servicer shall notify the holder of the B Note, prior to taking the
related action, if the Master Servicer or the Special Servicer anticipates that
it will seek reimbursement therefor under the preceding sentence, and of the
estimated amount of such reimbursement, and shall further notify the holder of
the B Note if it intends to obtain actual reimbursement in excess of the
estimated amount.
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Notwithstanding anything herein to the contrary, no advice, direction
or objection from the holder of the B Note, as contemplated by this Section
9.40, may (and the Master Servicer and Special Servicer, as applicable, shall
ignore and act without regard to any such advice, direction or objection that
the Master Servicer or Special Servicer, as applicable, has determined, in its
reasonable, good faith judgment, will) require or cause the Master Servicer or
Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Master Servicer's and Special Servicer's obligation to act
in accordance with the Servicing Standard.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION OF
ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee, to make payments to the Class R-I
Certificateholders, the Class R-II Certificateholders, the Class R-III
Certificateholders and the Class R-EA Certificateholders as set forth in Section
10.2 and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders) or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
Section 10.1(c) or (iii) the termination of the Trust pursuant to Section
10.1(d) below; provided that in no event shall the Trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
(b) The Master Servicer shall give the Trustee, the Luxembourg Paying
Agent and the Trustee notice of the date when the Aggregate Principal Balance of
the Mortgage Loans is less than or equal to one percent (1%) of the initial
Aggregate Principal Balance of the Mortgage Loans as of the Cut-Off Date. The
Trustee shall promptly forward such notice to the Trustee, the Depositor, the
Holder of a majority of the Controlling Class, the Master Servicer, the Special
Servicer and the Holders of the Class R-I Certificates; and the Holder of a
majority of the Controlling Class, the Master Servicer, the Special Servicer and
the Holders of the Class R-I Certificates, in such priority (and in the case of
the Class R-I Certificateholders, a majority of the Class R-I
Certificateholders), may purchase, in whole only, the Mortgage Loans and any
other property, if any, remaining in the Trust. If any party desires to exercise
such option, it will notify the Trustee who will notify any party with a prior
right to exercise such option. If any party that has been provided notice by the
Trustee (excluding the Depositor) notifies the Trustee within ten Business Days
after receiving notice of the proposed purchase that it wishes to purchase the
assets of the Trust, then such party (or, in the event that more than one of
such parties notifies the Trustee that it wishes to purchase the assets of the
Trust, the party with the first right to purchase the assets of the Trust) may
purchase the assets of the Trust in accordance with this Agreement. Upon the
Trustee's receipt of the Termination Price set forth below, the Trustee shall
promptly release or cause to be released to the Master Servicer for the benefit
of the Holder of the majority
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of the Class R-I Certificates, the Special Servicer or the Master Servicer, as
the case may be, the Mortgage Files pertaining to the Mortgage Loans. The
"Termination Price" shall equal 100% of the aggregate Principal Balances of the
Mortgage Loans (other than Mortgage Loans as to which a Final Recovery
Determination has been made) on the day of such purchase plus accrued and unpaid
interest thereon at the applicable Mortgage Rates (or Mortgage Rates less the
Master Servicing Fee Rate if the Master Servicer is the purchaser), with respect
to the Mortgage Loans to the Due Date for each Mortgage Loan ending in the
Collection Period with respect to which such purchase occurs, plus unreimbursed
Advances and interest on such unreimbursed Advances at the Advance Rate, and the
fair market value of any other property remaining in the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC and REMIC I. The Trustee shall consult with the Placement
Agents and the Underwriters or their respective successors, as advisers, in
order for the Trustee to determine whether the fair market value of the property
constituting the Trust has been offered; provided that, if any Placement Agent
or any Underwriter or an Affiliate of the Placement Agent or the Underwriters is
exercising its right to purchase the Trust assets, the Trustee shall consult
with the Operating Adviser in order for the Trustee to determine the fair market
value, provided that the Operating Adviser is not an Affiliate of the Class R-I
Holder, the Special Servicer or the Master Servicer, or the Trustee (the fees
and expenses of which shall be paid for by buyer of the property). As a
condition to the purchase of the Trust pursuant to this Section 10.1(b), the
Holder of the majority of the Class R-I Certificates, the Special Servicer or
the Master Servicer, as the case may be, must deliver to the Trustee an Opinion
of Counsel, which shall be at the expense of such Holders, the Special Servicer
or the Master Servicer, as the case may be, stating that such termination will
be a "qualified liquidation" under section 860F(a)(4) of the Code. Such purchase
shall be made in accordance with Section 10.3.
(c) Following the date on which the aggregate Certificate Balance of
the Class A Senior, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J Certificates is reduced to zero, the Remaining
Certificateholder shall have the right to exchange all of its Certificates,
including the Class X Certificates, (other than the Class S Certificates and the
Residual Certificates) for all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as contemplated by clause (ii) of Section 10.1(a) by
giving written notice to all the parties hereto no later than 60 days prior to
the anticipated date of exchange. In the event that the Remaining
Certificateholder elects to exchange all of its Certificates, including the
Class X Certificates, (other than the Class S Certificates and the Residual
Certificates) for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund in accordance with the preceding sentence, such Remaining
Certificateholder, not later than the Final Distribution Date, shall deposit in
the Certificate Account an amount in immediately available funds equal to the
aggregate outstanding Certificate Balance of the remaining REMIC III
Certificates, plus accrued and unpaid interest thereon, plus all amounts due and
owing to the Depositor, the Master Servicer, the Special Servicer, the Trustee,
hereunder through the date of the liquidation of the Trust Fund that may be
withdrawn from the Certificate Account, but only to the extent that such amounts
are not already on deposit in the Certificate Account. Such amounts may be
offset against amounts due to the Remaining Certificateholder upon termination
of the Trust. Upon confirmation that such final deposits have been made and
following the surrender of all remaining Certificates by the Remaining
Certificateholder on the Final Distribution Date, the Trustee shall, upon
receipt of a Request for Release from the Master Servicer, release or cause to
be released to the Remaining Certificateholder or any designee thereof, the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Remaining
Certificateholder as shall be necessary to effectuate
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transfer of the Mortgage Loans and REO Properties remaining in the Trust Fund,
and the Trust Fund shall be liquidated in accordance with Sections 10.2 and 10.3
of this Agreement. Thereafter, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer, and the Trustee (other than annual tax returns and maintenance
of books and records and the preparation and filing of final tax returns) shall
terminate. For federal income tax purposes, the Remaining Certificateholder
shall be deemed to have purchased the assets of the 000 Xxxxxx Xxxxxx Pari Passu
Loan REMIC and the assets of REMIC I (other than the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Regular Interest) for an amount equal to the remaining
Certificate Balance of its remaining Certificates (other than the Residual
Certificates), plus accrued and unpaid interest with respect thereto, and the
Trustee shall credit such amounts against amounts distributed in respect of such
Certificates. The remaining Mortgage Loans and REO Properties are deemed
disposed of to and distributed to the Remaining Certificateholder in liquidation
of the Trust Fund pursuant to Section 10.2.
(d) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC III Certificates and the Class R-EA Certificates such Holders may
terminate REMIC I (which will in turn result in the termination of REMIC II and
REMIC III) upon (i) the delivery to the Trustee and the Depositor of an Opinion
of Counsel (which opinion shall be at the expense of such Holders) stating that
such termination will be a "qualified liquidation" of each REMIC Pool under
Section 860F of the Code, (ii) the payment of any and all costs associated with
such termination and (iii) payment to the Master Servicer of market price
compensation for the loss of its servicing rights hereunder. Such termination
shall be made in accordance with Section 10.3. The remaining Mortgage Loans and
REO Properties thereupon shall be deemed disposed of to and distributed to such
Holders.
(e) Upon the termination of the Trust, any funds or other property
held by the Excess Interest Grantor Trust related to Excess Interest shall be
distributed to the Class S Certificateholders, on a pro rata basis.
(f) Upon the sale of the A Note relating to an A/B Mortgage Loan by
the Trust or the payment in full of such A Note, the related B Note shall no
longer be subject to this Agreement and shall no longer be serviced by the
Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Rating Agencies, the Class R-EA, the Class R-I, Class R-II and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-EA, Class R-I, Class R-II and REMIC III
Certificates will be made, and upon presentation and surrender of the Class
R-EA, Class R-I, Class R-II and REMIC III Certificates at the office or agency
of the Certificate Registrar therein specified, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Class R-EA, Class R-I,
Class R-II and REMIC III Certificates at the office or agency of the Certificate
Registrar therein specified. The Trustee shall give such notice to the Depositor
and the Certificate Registrar at the time such notice is
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given to Holders of the Class R-EA, Class R-I, Class R-II and REMIC III
Certificates. Upon any such termination, the duties of the Certificate Registrar
with respect to the Class R-EA, Class R-I, Class R-II and REMIC III Certificates
shall terminate and the Trustee shall terminate, or request the Master Servicer
to terminate, the Certificate Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Trustee's obligation hereunder to hold all amounts payable to the Class R-EA,
Class R-I, Class R-II and REMIC III Certificateholders in trust without interest
pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Class R-EA, Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-EA, Class R-I, Class R-II and
REMIC III Certificateholders to surrender their certificates evidencing the
Class R-EA, Class R-I, Class R-II and REMIC III Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice any Class R-EA, Class R-I, Class R-II and REMIC III
Certificates shall not have been surrendered for cancellation, the Certificate
Registrar may take appropriate steps to contact the remaining Class R-EA, Class
R-I, Class R-II and REMIC III Certificateholders concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Class R-EA, Class R-I, Class R-II and REMIC III Certificates shall not have
been surrendered for cancellation, the Trustee shall, subject to applicable
state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class R-EA, Class R-I, Class R-II
or REMIC III Certificateholder due to such Certificateholder's failure to
surrender its Certificate(s) for payment of the final distribution thereon in
accordance with this Section. Any money held by the Trustee pending distribution
under this Section 10.2 after 90 days after the adoption of a plan of complete
liquidation shall be deemed for tax purposes to have been distributed from the
REMIC Pools and shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
receives an Opinion of Counsel (at the expense of the Master Servicer or the
Class R-I Certificateholders, as the case may be), addressed to the Depositor
and the Trustee to the effect that the failure of the Trust to comply with the
requirements of this Section 10.3 will not (i) result in the imposition of taxes
on "prohibited transactions" on any REMIC Pool under the REMIC Provisions or
(ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the REMIC III Certificates, the Trustee shall prepare and (on behalf
of the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC (unless previously liquidated in
a "qualified liquidation"), REMIC I, REMIC II or REMIC III) shall adopt a plan
of complete liquidation of each such REMIC Pool, meeting the requirements of a
qualified liquidation under the REMIC Provisions, which plan need not be in any
special form and the date of which, in general, shall be the date of the notice
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specified in Section 10.2(a) and shall be specified in a statement attached to
the federal income tax return of each REMIC Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on the
REMIC III Certificates, the Trustee shall sell all of the assets of the Trust
for cash at the Termination Price; provided that if the Holders of the Class R-I
Certificates are purchasing the assets of the Trust, the amount to be paid by
such Holders may be paid net of the amount to be paid to such Holders as final
distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, (A) to the Holders of the Class R-EA Certificates all assets of the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC remaining after such final payment of
the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, (B) to the Holders
of the Class R-I Certificates all assets of REMIC I remaining after such final
payment of the REMIC I Regular Interests, (C) to the Holders of the Class R-II
Certificates all remaining assets of REMIC II after such final payment of the
REMIC II Regular Interests and (D) to the holders of the Class R-III
Certificates all remaining assets of REMIC III (in each case other than cash
retained to meet claims), and the Trust shall terminate at that time; and
(iv) In no event may the final payment on the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC regular Interest, REMIC I Regular Interests, REMIC II
Regular Interests or REMIC Regular Certificates or the final distribution or
credit to the Holders of the Residual Certificates, respectively, be made after
the 89th day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II, Class R-III or
Class R-EA Certificates, respectively, the Holders thereof hereby (i) authorize
the Trustee on behalf of the Trustee to take such action as may be necessary to
adopt a plan of complete liquidation of the REMIC Pool, and (ii) agree to take
such other action as may be necessary to adopt a plan of complete liquidation of
the Trust upon the written request of the Depositor, which authorization shall
be binding upon all successor Class R-I, Class R-II, Class R-III and Class R-EA
Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner
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otherwise control the Master Servicer or operation and management of the Trust,
or the obligations of the parties hereto, nor shall anything herein set forth,
or contained in the terms of the Certificates, be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association, nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Trustee is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee,
within fifteen days after receipt by the Certificate Registrar of a request by
the Trustee, in writing, a list, in such form as the Trustee, as the case may
be, may reasonably require, of the names and addresses of the Certificateholders
of each Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Trustee and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, send, at such Person's expense, the written communication
proffered by the applicants to all Certificateholders at their addresses as they
appear in the Certificate Register.
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(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Master Servicer and the Trustee
that neither the Depositor, the Certificate Registrar, the Master Servicer nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Certificateholders hereunder,
regardless of the source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor.
Such instrument or instruments (as the action embodies therein and evidenced
thereby) are herein sometimes referred to as an "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agents shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, and the Depositor, if made in
the manner provided in this Section. The Trustee agrees to promptly notify the
Depositor of any such instrument or instruments received by it, and to promptly
forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, or
the Depositor in reliance thereon, whether or not notation of such action is
made upon such Certificate.
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ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII (other than Section 12.5) shall
apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) Pursuant to the 000 Xxxxxx Xxxxxx Pari Passu REMIC Declaration, an
election will be made by the Trustee to treat the segregated pool of assets
consisting of the 000 Xxxxxx Xxxxxx Pari Passu Loan and all proceeds thereof or
any real or personal property acquired with respect thereto as a REMIC (the "111
Eighth Avenue Pari Passu Loan REMIC") under the Code, other than any portion of
the foregoing amounts allocable to a B Note or Serviced Companion Mortgage Loan.
Such elections will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on December 31, 2005. For purposes of such election, the 000 Xxxxxx Xxxxxx Pari
Passu Loan REMIC Regular Interests shall each be designated as the Class of
"regular interests" in the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC and the Class
R-EA Certificates shall be designated as the sole Class of "residual interests"
in the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC.
An election will be made by the Trustee to treat the segregated
pool of assets consisting of the Majority Mortgage Loans, the 000 Xxxxxx Xxxxxx
Pari Passu Loan REMIC Regular Interest, such amounts related to the Majority
Mortgage Loans as shall from time to time be held in the Certificate Account and
the Interest Reserve Account, such amounts related to the Majority Mortgage
Loans and the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest as shall
from time to time be held in the Distribution Account, the related Insurance
Policies and any related REO Properties as a REMIC ("REMIC I") under the Code,
other than any portion of the foregoing amounts allocable to a B Note or
Serviced Companion Mortgage Loan. Such elections will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC I Interests are issued. For purposes of such election, the REMIC I
Regular Interests shall each be designated as a separate Class of "regular
interests" in REMIC I and the REMIC I Residual Interest shall be designated as
the sole Class of "residual interests" in REMIC I.
An election will be made by the Trustee to treat the segregated pool
of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC II")
under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC II
Interests are issued. For the purposes of such election, the REMIC II Regular
Interests shall be designated as the "regular interests" in REMIC II and the
Class R-II Certificates shall be designated as the sole Class of the "residual
interests" in REMIC II.
An election will be made by the Trustee to treat the segregated pool
of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC III")
under the Code. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which
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the REMIC III Certificates are issued. For purposes of such election, the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-J, Class X-1, Class
X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P and Class Q Certificates
shall be designated as the "regular interests" in REMIC III and the Class R-III
Certificates shall be designated as the sole Class of "residual interests" in
REMIC III.
The Trustee shall not permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in any of the REMIC Pools other than
the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, REMIC I Regular
Interests, the REMIC II Regular Interests, the REMIC III Regular Interests and
the Residual Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool (other than the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC) within the
meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Trustee shall cause to be prepared, signed, and timely filed
with the Internal Revenue Service, on behalf of each REMIC Pool, an application
for a taxpayer identification number for such REMIC Pool on Internal Revenue
Service Form SS-4. The Trustee, upon receipt from the Internal Revenue Service
of the Notice of Taxpayer Identification Number Assigned, shall promptly forward
a copy of such notice to the Depositor and the Master Servicer. The Trustee
shall prepare and file Form 8811 on behalf of each REMIC Pool and shall
designate an appropriate Person to respond to inquiries by or on behalf of
Certificateholders for original issue discount and related information in
accordance with applicable provisions of the Code.
(e) The Trustee shall prepare and file all of each REMIC Pool's
federal and state income or franchise tax and information returns as such REMIC
Pool direct representative; the expenses of preparing and filing such returns
shall be borne by the Trustee, except that if additional state tax returns are
required to be filed in more than three states, the Trustee shall be entitled,
with respect to any such additional filings, to (i) be paid a reasonable fee and
(ii) receive its reasonable costs and expenses, both as amounts reimbursable
pursuant to Section 5.2(a)(vi) hereof. The Depositor, the Master Servicer and
the Special Servicer shall provide on a timely basis to the Trustee or its
designee such information with respect to the Trust or any REMIC Pool as is in
its possession, which the Depositor or the Master Servicer and the Special
Servicer has received or prepared by virtue of its role as Depositor or Master
Servicer and the Special Servicer hereunder and reasonably requested by the
Trustee to enable it to perform its obligations under this subsection, and the
Trustee shall be entitled to conclusively rely on such information in the
performance of its obligations hereunder. The Depositor shall indemnify the
Trust, the Trustee, for any liability or assessment against any of them or cost
or expense (including attorneys' fees) incurred by them resulting from any error
resulting from bad faith, negligence, or willful malfeasance of the Depositor in
providing any information for which the Depositor is responsible for preparing.
The Master Servicer and the Special Servicer shall indemnify the
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Trustee, and the Depositor for any liability or assessment against the Trustee,
the Depositor, or any REMIC Pool and any expenses incurred in connection with
such liability or assessment (including attorneys' fees) resulting from any
error in any of such tax or information returns caused by the negligence,
willful misconduct or bad faith of the Master Servicer or the Special Servicer,
as the case may be. The Trustee shall indemnify the Master Servicer, the
Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the
Depositor and any REMIC Pool resulting from any error in any of such tax or
information returns resulting from errors in the preparation of such returns
caused by the negligence, willful misconduct or bad faith of the Trustee. Each
indemnified party shall immediately notify the indemnifying party or parties of
the existence of a claim for indemnification under this Section 12.1(e), and
provide the indemnifying party or parties, at the expense of such indemnifying
party or parties, an opportunity to contest the tax or assessment or expense
giving rise to such claim, provided that the failure to give such notification
rights shall not affect the indemnification rights in favor of any REMIC Pool
under this Section 12.1(e). Any such indemnification shall survive the
resignation or termination of the Master Servicer, the Trustee or the Special
Servicer, or the termination of this Agreement.
(f) The Trustee shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Trustee shall provide (i) to the Internal Revenue Service
or other Persons (including, but not limited to, the Transferor of a Residual
Certificate, to a Disqualified Organization or to an agent that has acquired a
Residual Certificate on behalf of a Disqualified Organization) such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Disqualified Organization and (ii) to the
Certificateholders such information or reports as are required by the Code or
REMIC Provisions.
(g) The Trustee shall forward to the Depositor copies of quarterly and
annual REMIC tax returns and Internal Revenue Service Form 1099 information
returns and such other information within the control of the Trustee as the
Depositor may reasonably request in writing. Moreover, the Trustee shall forward
to each Certificateholder such forms and furnish such information within its
control as are required by the Code to be furnished to them, shall prepare and
file with the appropriate state authorities as may to the actual knowledge of a
Responsible Officer of the Trustee be required by applicable law and shall
prepare and disseminate to Certificateholders Internal Revenue Service Forms
1099 (or otherwise furnish information within the control of the Trustee) to the
extent required by applicable law. The Trustee will make available to any
Certificateholder any tax related information required to be made available to
Certificateholders pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II, Class R-III and Class R-EA Certificates, respectively (or of
the greatest percentage of such Class R-I, Class R-II, Class R-III and Class
R-EA Certificates if no Holder holds more than 50% thereof), shall be the
applicable REMIC's Tax Matters Person. The duties of the Tax Matters Person for
each of the REMIC Pools are hereby delegated to the Trustee and each Residual
Certificateholder, by acceptance of its Residual Certificate, agrees, on behalf
of itself and all successor holders of such Residual Certificate, to such
delegation to the Trustee as their agent and attorney in fact. If the Code or
applicable regulations prohibits the Trustee from
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signing any applicable Internal Revenue Service, court or other administrative
documents or from acting as Tax Matters Person (as an agent or otherwise), the
Trustee shall take whatever action is necessary for the signing of such
documents and designation of a Tax Matters Person, including the designation of
such Residual Certificateholder. The Trustee shall not be required to expend or
risk its own funds or otherwise incur any other financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers (except to the extent of the ordinary expenses of performing its duties
under this Agreement), 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.
(i) The Trustee, the Holders of the Residual Certificates, the Master
Servicer and the Special Servicer shall each exercise reasonable care, to the
extent within its control, and with respect to each of the Trustee, the Master
Servicer and the Special Servicer, within the scope of its express duties, and
shall each act in accordance with this Agreement and the REMIC Provisions in
order to create and maintain the status of each REMIC Pool as a REMIC and the
Excess Interest Grantor Trust as a grantor trust or, as appropriate, adopt a
plan of complete liquidation with respect to each REMIC Pool.
(j) The Trustee, the Master Servicer, the Special Servicer, and the
Holders of Residual Certificates shall not take any action or fail to take any
action or cause any REMIC Pool to take any action or fail to take any action if
any of such persons knows or could, upon the exercise of reasonable diligence,
know, that, under the REMIC Provisions such action or failure, as the case may
be, could (i) endanger the status of any REMIC Pool as a REMIC or (ii) result in
the imposition of a tax upon any REMIC Pool (including but not limited to the
tax on prohibited transactions as defined in Code Section 860F(a)(2)) or (iii)
endanger the status of the Excess Interest Grantor Trust as a grantor trust
unless the Trustee has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such status or result in the imposition of such a tax. Any
action required under this section which would result in an unusual or
unexpected expense shall be undertaken at the expense of the party seeking the
Trustee, or the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on any REMIC Pool created
hereunder, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC Pool created hereunder after the Startup Day pursuant
to Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under this Agreement; (ii) the Special Servicer, if such tax arises
out of or results from a breach by the Special Servicer of any of its
obligations under this Agreement; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under this Agreement; and (iv) the Trust in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 9.14(e)
shall be charged to and paid by the Trust from the net income generated on the
related REO Property. Any such
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amounts payable by the Trust in respect of taxes shall be paid by the Trustee
out of amounts on deposit in the Distribution Account.
(l) The Trustee and, to the extent that records are maintained by the
Master Servicer or the Special Servicer in the normal course of its business,
the Master Servicer and the Special Servicer shall, for federal income tax
purposes, maintain books and records with respect to each REMIC Pool on a
calendar year and on an accrual basis. Notwithstanding anything to the contrary
contained herein, except to the extent provided otherwise in the Mortgage Loans
or in the Mortgages, all amounts collected on the Mortgage Loans shall, for
federal income tax purposes, be allocated first to interest due and payable on
the Mortgage Loans (including interest on overdue interest, other than
additional interest at a penalty rate payable following a default). The books
and records must be sufficient concerning the nature and amount of each REMIC
Pool's investments to show that such REMIC Pool has complied with the REMIC
Provisions.
(m) Neither the Trustee, the Master Servicer nor the Special Servicer
shall enter into any arrangement by which any REMIC Pool will receive a fee or
other compensation for services.
(n) In order to enable the Trustee to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Trustee
within ten (10) days after the Closing Date all information or data that the
Trustee reasonably determines to be relevant for tax purposes on the valuations
and offering prices of the Certificates, including, without limitation, the
yield, prepayment assumption, issue prices and projected cash flows of the
Certificates, as applicable, and the projected cash flows of the Mortgage Loans.
Thereafter, the Depositor shall provide to the Trustee or its designee, promptly
upon request therefor, any such additional information or data within the
Depositor's possession or knowledge that the Trustee may, from time to time,
reasonably request in order to enable the Trustee to perform its duties as set
forth herein. The Trustee is hereby directed to use any and all such information
or data provided by the Depositor in the preparation of all federal and state
income or franchise tax and information returns and reports for each REMIC Pool
to Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including attorneys' fees) or assessments against the Trustee, and
each REMIC Pool arising from any errors or miscalculations of the Trustee
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Trustee
(but not resulting from the methodology employed by the Trustee) on a timely
basis and such indemnification shall survive the termination of this Agreement
and the termination or resignation of the Trustee.
The Trustee agrees that all such information or data so obtained by it
are to be regarded as confidential information and agrees that it shall use its
reasonable best efforts to retain in confidence, and shall ensure that its
officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
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professional advisers of the Trustee and its parent, or (ii) in connection with
its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of the
000 Xxxxxx Xxxxxx Pari Passu Loan REMIC and REMIC I as "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC III, for each Class of REMIC I Regular
Interests and for each Class of REMIC II Regular Interests is the Rated Final
Distribution Date; provided that the "latest possible maturity date" for the
Class X-2 Certificates is the Distribution Date in March 2013 and the "latest
possible maturity date" for the 000 Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular
Interests is April 1, 2014.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall
permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be
subject to a tax on "prohibited transactions" or "prohibited contributions" or
other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Master Servicer nor
the Special Servicer shall permit any modification of a Money Term of a Mortgage
Loan or a Specially Serviced Mortgage Loan unless (i) the Trustee, the Special
Servicer, and the Master Servicer have received a Nondisqualification Opinion or
a ruling from the Internal Revenue Service (at the expense of the party making
the request that the Master Servicer or the Special Servicer modify the Mortgage
Loan or a Specially Serviced Mortgage Loan) to the effect that such modification
would not be treated as an exchange pursuant to Section 1001 of the Code (or, if
it would be so treated, would not be treated as a "significant modification" for
purposes of Section 1.860G-2(b) of the Treasury Regulations) or (ii) such
modification meets the requirements set forth in Sections 8.18 or 9.5.
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SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by the Trustee of its
respective duties and obligations set forth herein, the Trustee shall be liable
to the REMIC Pools and the Holders of the Residual Certificates for any and all
losses, claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, shall not be liable for any such Losses attributable to the action
or inaction of the Master Servicer or the Special Servicer, the Depositor or the
Holders of such Residual Certificates nor for any such Losses resulting from any
actions or failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Depositor or such Holders of the Residual Certificates on which the Trustee has
relied. The foregoing shall not be deemed to limit or restrict the rights and
remedies of the Holders of the Residual Certificates now or hereafter existing
at law or in equity. The Trustee shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 EXCESS INTEREST GRANTOR TRUST
(a) The assets of the Excess Interest Grantor Trust, consisting of the
right to any Excess Interest in respect of the ARD Loans and the Excess Interest
Sub-account, shall be held by the Trustee for the benefit of the Holders of the
Class S Certificates, which Class S Certificates, in the aggregate, will
evidence 100% beneficial ownership of such assets from and after the Closing
Date. It is intended that the portion of the Trust consisting of the Excess
Interest Grantor Trust will be treated as a grantor trust for federal income tax
purposes, and each of the parties to this Agreement agrees that it will not take
any action that is inconsistent with establishing or maintaining such treatment.
Under no circumstances may the Trustee vary the assets of the Excess Interest
Grantor Trust so as to take advantage of variations in the market so as to
improve the rate of return of Holders of the Class S Certificates. The Trustee
shall be deemed to hold and the Trustee shall account for the Excess Interest
Grantor Trust separate and apart from the assets of any REMIC I Pool created
hereunder.
(b) The parties intend that the portions of the Trust consisting of
the Excess Interest Grantor Trust shall constitute, and that the affairs of the
Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify such
portion as, a "grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Trustee shall furnish or cause to be furnished to the Class S
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income and expenses relating to
their shares of the income and expenses of the Excess Interest Grantor Trust,
and with respect to the Excess Interest Grantor Trust, on the cash or accrual
method of accounting and so as to enable reporting to Holders of Class S
Certificates based on their annual accounting period, at the time or times and
in the manner required by the Code.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or
the grantor trust created from the related portion of the Trust) for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates, (vi) to amend any provision
herein to the extent necessary or desirable to list the Certificates on a stock
exchange, including, without limitation, the appointment of one or more paying
agents and the requirement that certain information be delivered to such paying
agents, (vii) to modify the provisions relating to the timing of Advance
reimbursements in order to conform them to the commercial mortgage-backed
securities industry standard for such provisions if (w) the Depositor, the
Master Servicer and the Trustee determine that that industry standard has
changed, (x) such modification will not result in an Adverse REMIC Event, as
evidenced by an Opinion of Counsel, (y) each Rating Agency has delivered a
Rating Agency Confirmation with respect to such modification, and (z) the
Operating Adviser consents to such modification, or (viii) to make any other
amendment which does not adversely affect in any material respect the interests
of any Certificateholder (unless such Certificateholder consents) and with
respect to the A/B Mortgage Loan, the interests of the related B Note holder,
unless such holder consents. No such amendment effected pursuant to clause (i),
(ii) or (iv) of the preceding sentence shall (A) adversely affect in any
material respect the interests of any Certificateholder not consenting thereto
without the consent of 100% of the Certificateholders (if adversely affected) or
any B Note holder, (if adversely affected), or (B) adversely affect the status
of any REMIC Pool as a REMIC (or the grantor trust created from the related
portion of the Trust). Prior to entering into any amendment without the consent
of Holders pursuant to this paragraph, the Trustee may require an Opinion of
Counsel and a Nondisqualification Opinion (in
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the case of clauses (i), (ii) and (iii), at the expense of the Depositor, and
otherwise at the expense of the party requesting such amendment, except that if
the Trustee requests such amendment, such amendment shall be at the expense of
the Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3 and provided that the amendment does not
adversely affect the B Note holder. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and an Opinion of Counsel that any
amendment pursuant to this Section 13.3(b) is permitted by this Agreement at the
expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding and the consent of the
B Note holder, if adversely affected thereby, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders; provided
that no such amendment may (i) directly or indirectly reduce in any manner the
amount of, or delay the timing of the distributions required to be made on any
Certificate or B Note without the consent of the Holder of such Certificate or B
Note holder, as applicable, (ii) reduce the aforesaid percentages of Aggregate
Certificate Percentage or Certificate Balance, the Holders of which are required
to consent to any such amendment without the consent of all the Holders of each
Class of Certificates affected thereby, (iii) eliminate or reduce the Master
Servicer's, or the Trustee's obligation to make an Advance, including without
limitation, in the case of the Master Servicer, the obligation to advance on a B
Note or Serviced Companion Mortgage Loan, or alter the Servicing Standard except
as may be necessary or desirable to comply with the REMIC Provisions; (iv)
adversely affect the status of the grantor trust created out of the related
portion of the trust, for federal income tax purposes, without the consent of
100% of the Class S Certificateholders or (v) adversely affect the status of any
REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) or the Excess Interest Grantor Trust as a grantor
trust without the consent of 100% of the Certificateholders (including the Class
R-I, Class R-II, Class R-III and Class R-EA Certificateholders but excluding the
Class S Certificateholders); provided that no such amendment may modify Section
8.18 of this Agreement without Rating Agency Confirmation. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
of Counsel that any amendment pursuant to this Section 13.3(c) is permitted by
this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if
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pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In all other cases,
the costs and expenses shall be borne by the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Reserved.
(h) Notwithstanding the fact that the provisions in Section 13.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trust, the Trustee, the Master Servicer or the
Special Servicer, any Certificate beneficially owned by a Seller or any of its
Affiliates shall be deemed not to be outstanding (and shall not be considered
when determining the percentage of Certificateholders consenting or when
calculating the total number of Certificates entitled to consent) for purposes
of determining if the requisite consents of Certificateholders under this
Section 13.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may be amended pursuant to
Section 8.26(d) herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy
to: General Counsel; (B) in the case of the Trustee at the Corporate Trust
Office; (C) in the case of the Master Servicer, Midland Loan Services, Inc.,
00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries) and X.X.
Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for communications by United
States mail), Attention: President, with a copy to Xxxxxxx Xxxxxxxx Xxxxxx LLP,
0000 Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx; (D) in the case of MSMC, Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to:
General Counsel; (E) in the case of the Special Servicer, GMAC Commercial
Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Bieber (with a copy to General Counsel at
such address), (F) in the case
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of the initial Operating Adviser, Cadim TACH, Inc. c/o CDP Capital Real Estate
Advisors, CDP Capital Center, 0000 Xxxx-Xxxx-Xxxxxxxx Xxxxx, Xxxxx X-000,
Xxxxxxxx, Xxxxxx X0X 0X0, Xxxxxx, Attention Corporate Secretary, with a copy to
CWCapital Investments, LLC, 0000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxx Xxxxx and CWCapital Investments, LLC,
0000 Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx, Attention: Xxxxx Xxxxxxx and in the
case of CWCapital II, CWCapital LLC, One Xxxxxxx River Place, 00 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Senior Vice
President and General Counsel or as to each party such other address as may
hereafter be furnished by such party to the other parties in writing. Any notice
required or permitted to be mailed to a Holder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement and their successors hereunder and the Holders of the
Certificates, any benefit or any legal or equitable right, power, remedy or
claim under this Agreement; provided, however, that (i) the Mortgagors set forth
on Schedule VIII hereto are intended third-party beneficiaries of the fifth and
sixth paragraph of Section 2.3(a), (ii) the holder of any Serviced Companion
Mortgage Loan and any B Note, if any, is an intended third-party beneficiary in
respect of the rights afforded it hereunder and (iii) the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer are intended third-party beneficiaries of
Sections 5.2(a)(ii)(B), 8.25(d) and 9.24(d), respectively.
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SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating Agencies,
Special Servicer and the Operating Adviser of the occurrence of any of the
following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section 13.3
hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or REO
Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special Servicer,
the Operating Adviser or the Trustee pursuant to this Agreement;
(v) the appointment of any successor to the Master Servicer, the
Trustee, the Operating Adviser or the Special Servicer pursuant to Section 7.7,
7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
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If to Fitch, to:
Fitch Ratings, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
If to S&P, to:
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section
7.6; or
(ii) the appointment of a successor trustee pursuant to Section
7.7; or
(iii) the appointment of a successor Operating Adviser pursuant
to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and shall deliver to the Special Servicer each of the reports
required to be delivered by the Master Servicer to the Special Servicer pursuant
to the terms of this Agreement. The Trustee, and the Special Servicer shall
deliver to the Rating Agencies and the Depositor any information as reasonably
requested by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer, or Trustee shall be given by such parties,
respectively, on a best efforts basis and only as a matter of courtesy and
accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the
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intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans and related property by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans or any related property is held to
be the property of the Depositor, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans or any
related property, then this Agreement shall be deemed to be a security
agreement; and the conveyance provided for in Section 2.1 shall be deemed to be
a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the Depositor's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) the property described in clauses (1)-(4) below (regardless
of whether subject to the UCC or how classified thereunder) and all accounts,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
and investment property consisting of, arising from or relating to any of the
property described in clauses (1)-(4) below: (1) 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 on and after the Cut-Off Date, and the Mortgage Files; (2) the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, including all property therein and all
income from the investment of funds therein (including any accrued discount
realized on liquidation of any investment purchased at a discount); (3) the 000
Xxxxxx Xxxxxx Pari Passu Loan REMIC Regular Interest, the REMIC I Regular
Interests and the REMIC II Regular Interests; and (4) the Mortgage Loan Purchase
Agreements that are permitted to be assigned to the Trustee pursuant to Section
14 thereof;
(ii) all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
All cash and non-cash Proceeds (as defined in the Uniform Commercial
Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 8-301 and 9-315 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
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The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates. The Master Servicer shall not be required to pay any
such fees or any fees charged for any Rating Agency Confirmation (except any
confirmation required under Section 8.22, Section 8.23 or in connection with a
termination and replacement of the Master Servicer following an Event of Default
of the Master Servicer).
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar and the Authenticating Agent
have caused their names to be signed hereto by their respective officers
thereunto duly authorized as of the day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.
as Depositor
By: /s/ Xxxxxx X. Friend
------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
Midland Loan Services, Inc., as Master
Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President
Xxxxx Fargo Bank, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of March 2005, before me, a notary public in and for
said State, personally appeared Xxxxxx X. Friend, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of Xxxxxx Xxxxxxx Capital I Inc.,
and acknowledged to me that such corporation executed the within instrument
pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this 30th day of March 2005, before me, a notary public in and for
said State, personally appeared ____________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Executive Vice President of GMAC Commercial Mortgage
Corporation, and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxx
------------------------------------
Notary Public
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STATE OF KANSAS )
) ss.:
COUNTY OF XXXXXXX)
On the 30th day of March 2005, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxxx known to me to be a Senior
Vice President of Midland Loan Services, one of the entities that executed the
within instrument, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
------------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of March 2005, before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Xxxxx Fargo Bank,
National Association, and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx
------------------------------------
Notary Public
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================================================================================
XXXXXX XXXXXXX CAPITAL I INC.,
AS DEPOSITOR,
MIDLAND LOAN SERVICES, INC.,
AS MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS TRUSTEE
----------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF MARCH 1, 2005
----------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-HQ5
================================================================================
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 4.517% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 31, 2005
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO. : 61745M 3B 7
CLASS A-1 CERTIFICATES AS OF THE
CLOSING DATE: $121,000,000.00
CERTIFICATE BALANCE OF THIS CLASS A-1
CERTIFICATE AS OF THE CLOSING DATE:
$121,000,000.00
No. A-1-1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-1 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________ for the account of ______________
______________________________________________ account number
____________________ or, if mailed by check, to ________________________________
___________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
___________________________________, as its agent.
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 4.809% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
CUSIP NO.: 61745M 3C 5
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $160,900,000.00
CERTIFICATE BALANCE OF THIS CLASS A-2
CERTIFICATE AS OF THE CLOSING DATE:
$160,900,000.00
No. A-2-1
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-2 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with Under Uniform Gifts to Minors
rights of survivorship
and not as tenants in
common Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of _______________
__________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-3
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.007% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3D 3
CLASS A-3 CERTIFICATES AS OF THE CLOSING
DATE: $159,400,000.00
CERTIFICATE BALANCE OF THIS CLASS A-3
CERTIFICATE AS OF THE CLOSING DATE:
$159,400,000.00
No. A-3-1
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-3 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of ______________
_________________________ account number ______________ or, if mailed by check,
to ____ ___________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-4
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-4 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.168% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 31, 2005
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3F 8
CLASS A-4 CERTIFICATES AS OF THE
CLOSING DATE: $711,252,000.00
CERTIFICATE BALANCE OF THIS CLASS A-4
CERTIFICATE AS OF THE CLOSING DATE:
$711,252,000.00
No. A-4-1
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-4 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of _________________________
___________________________________________ account number ______________ or, if
mailed by check, to ____ ___________________________________. Statements should
be mailed to ____________________. This information is provided by assignee
named above, or _______________________, as its agent.
EXHIBIT A-5
[FORM OF CLASS A-AB CERTIFICATE]
THIS CLASS A-AB CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-AB CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.037% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3E 1
CLASS A-AB CERTIFICATES AS OF THE CLOSING
DATE: $66,400,000.00
CERTIFICATE BALANCE OF THIS CLASS A-AB
CERTIFICATE AS OF THE CLOSING DATE:
$66,400,000.00
No. A-AB-1
CLASS A-AB CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-AB Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-AB Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
__________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-6
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.242% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3H 4
CLASS A-J CERTIFICATES AS OF THE CLOSING
DATE: $112,372,000.00
CERTIFICATE BALANCE OF THIS CLASS A-J
CERTIFICATE AS OF THE CLOSING DATE:
$112,372,000.00
No. A-J-1
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class
A-J Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to_____________ for the account of _________________
______________________________ account number ______________ or, if mailed by
check, to ____ ___________________________________. Statements should be mailed
to ____________________. This information is provided by assignee named above,
or _______________________, as its agent.
EXHIBIT A-7
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE 5.272% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 31, 2005
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3J 0
CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $30,474,000.00
CERTIFICATE BALANCE OF THIS CLASS B
CERTIFICATE AS OF THE CLOSING DATE:
$30,474,000.00
No. B-1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class B
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-8
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.302% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3K 7
CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $19,046,000.00
CERTIFICATE BALANCE OF THIS CLASS C
CERTIFICATE AS OF THE CLOSING DATE:
$19,046,000.00
No. C-1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class C
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-9
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.336% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3L 5
CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $15,237,000.00
CERTIFICATE BALANCE OF THIS CLASS D
CERTIFICATE AS OF THE CLOSING DATE:
$15,237,000.00
No. D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class D
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-10
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE MASTER SERVICER,
THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE
INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.378% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3M 3
CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $17,141,000.00
CERTIFICATE BALANCE OF THIS CLASS E
CERTIFICATE AS OF THE CLOSING DATE:
$17,141,000.00
No. E-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class E
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
__________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-11
[FORM OF CLASS F CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE.
ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT
SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT
CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.602% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3P 6
CLASS F CERTIFICATES AS OF THE
CLOSING DATE: $15,237,000.00
CERTIFICATE BALANCE OF THIS CLASS F
CERTIFICATE AS OF THE CLOSING DATE:
$15,237,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. F-1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more
new Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
__________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-12
[FORM OF CLASS G CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.662% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3Q 4
CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $15,237,000.00
CERTIFICATE BALANCE OF THIS CLASS G
CERTIFICATE AS OF THE CLOSING DATE:
$15,237,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. G-1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5 and are issued in the Classes specified in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more
new Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS H CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.662% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3R 2
CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $13,333,000.00
CERTIFICATE BALANCE OF THIS CLASS H
CERTIFICATE AS OF THE CLOSING DATE:
$13,333,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. H-1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class H Certificates. The Certificates are designated as the
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5 and are issued in the Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more
new Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _____________
____________________________________ account number ______________ or, if mailed
by check, to ________________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS J CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.662% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO. : 61745M 3S 0
CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $20,950,000.00
CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE:
$20,950,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. J-1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class J
Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are
issued in the Classes as specifically set forth in the Pooling and Servicing
Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more
new Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to _____________ for the account of ___________
______________________________________ account number ______________ or, if
mailed by check, to _____ __________________________________. Statements should
be mailed to ____________________. This information is provided by assignee
named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS K CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3T 8
CLASS K CERTIFICATES AS OF THE
CLOSING DATE: $5,714,000.00
CERTIFICATE BALANCE OF THIS CLASS K
CERTIFICATE AS OF THE CLOSING DATE:
$5,714,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. K-1
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ___________
_________________________ account number ______________ or, if mailed by check,
to ____ ___________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS L CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 31, 2005
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3U 5
CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $5,714,000.00
CERTIFICATE BALANCE OF THIS CLASS L
CERTIFICATE AS OF THE CLOSING DATE:
$5,714,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. L-1
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of ___________
______________________________________ account number ______________ or, if
mailed by check, to _______ ________________________________. Statements should
be mailed to ____________________. This information is provided by assignee
named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS M CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3V 3
CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $5,714,000.00
CERTIFICATE BALANCE OF THIS CLASS M
CERTIFICATE AS OF THE CLOSING DATE:
$5,714,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. M-1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Xxxxxx Xxxxxxx Capital I Inc. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class M Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in
the Classes as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________ for the account of ____________
________________________________________________________ account number ________
______________ or, if mailed by check, to ______ ______________________________.
Statements should be mailed to __________________________. This information is
provided by assignee named above, or __________________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS N CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3W 1
CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $3,809,000.00
CERTIFICATE BALANCE OF THIS CLASS N
CERTIFICATE AS OF THE CLOSING DATE:
$3,809,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. N-1
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class N Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ____________
_____________________________________ account number ______________ or, if
mailed by check, to ____ ___________________________________. Statements should
be mailed to ____________________. This information is provided by assignee
named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS O CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3X 9
CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $1,905,000.00
CERTIFICATE BALANCE OF THIS CLASS O
CERTIFICATE AS OF THE CLOSING DATE:
$1,905,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. O-1
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class O Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of ________________
_________________________________ account number ______________ or, if mailed by
check, to _____ __________________________________. Statements should be mailed
to ____________________. This information is provided by assignee named above,
or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS P CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3Y 7
CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $3,809,000.00
CERTIFICATE BALANCE OF THIS CLASS P
CERTIFICATE AS OF THE CLOSING DATE:
$3,809,000.00 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. P-1
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class P Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class Pf
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class P Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _____________
____________________________________ account number ______________ or, if mailed
by check, to _____ __________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS Q CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS Q CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS Q CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN
OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 5.013% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005
TRUSTEE: XXXXX FARGO BANK, NATIONAL
CLOSING DATE: MARCH 31, 2005 ASSOCIATION
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CUSIP NO.: 61745M 3Z 4
CLASS Q CERTIFICATES AS OF THE CLOSING
DATE: $19,046,515.20
CERTIFICATE BALANCE OF THIS CLASS Q
CERTIFICATE AS OF THE CLOSING DATE:
$19,046,515.20 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED)
No. Q-1
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class Q Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class Q Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 14th day of
each month or, if such 14th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ____________
_____________________________________ account number ______________ or, if
mailed by check, to ____ ___________________________________. Statements should
be mailed to ____________________. This information is provided by assignee
named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS S CERTIFICATE]
THIS CLASS S CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NO PASS-THROUGH RATE, CERTIFICATE BALANCE OR NOTIONAL
AMOUNT. THE HOLDER OF THIS CERTIFICATE IS ENTITLED ONLY TO THE DISTRIBUTIONS
DESCRIBED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
PERCENTAGE INTEREST OF THIS CLASS S MASTER SERVICER: MIDLAND LOAN
CERTIFICATE: 100% SERVICES, INC.
DATE OF POOLING AND SERVICING AGREEMENT: SPECIAL SERVICER: GMAC COMMERCIAL
AS OF MARCH 1, 2005 MORTGAGE CORPORATION
CUT-OFF DATE: MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: MARCH 31, 2005
CUSIP NO.: 61745M 4L 4
FIRST DISTRIBUTION DATE: APRIL 14, 2005
No. S-1
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Cadim TACH Inc. is the registered owner of the interest
evidenced by this Certificate in the Class S Certificates issued by the Trust
created pursuant to the Pooling and Servicing Agreement, dated as specified
above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
S Certificates specified on the face hereof. The Certificates are designated as
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement.
Distributions on this Certificate will be made out of the Available Distribution
Amount, to the extent and subject to the limitations set forth in the Pooling
and Servicing Agreement, on the 14th day of each month or, if such 14th day is
not a Business Day, the next succeeding Business Day (a "Distribution Date")
commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"). All sums distributable on this Certificate are payable in
the coin or currency of the United States of America as at the time of payment
is legal tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions on or prior to the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and surrender of such Certificate at the location that will be
specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto
with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance of the Certificates then outstanding, as specified in the
Pooling and Servicing Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon the Certificate. The Pooling and Servicing Agreement also
permits the amendment thereof, in certain circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust
and payment of the Certificates and of all administrative expenses associated
with the Trust, any remaining assets of the Trust shall be distributed to the
holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _____________
____________________________________ account number ______________ or, if mailed
by check, to ____ ___________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made
EXHIBIT A-23
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR 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), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
PERCENTAGE INTEREST OF THIS CLASS R-I SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: TRUSTEE: XXXXX FARGO BANK, NATIONAL
AS OF MARCH 1, 2005 ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005 NO. R-I-1
FIRST DISTRIBUTION DATE: APRIL 14, 2005
MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5 and are issued in the Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions on or prior to the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to ______________________________________. Statements should be mailed
to ____________________. This information is provided by assignee named above,
or _______________________, as its agent.
EXHIBIT A-24
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR 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), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
PERCENTAGE INTEREST OF THIS CLASS R-II SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: TRUSTEE: XXXXX FARGO BANK, NATIONAL
AS OF MARCH 1, 2005 ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005 NO. R-II-1
FIRST DISTRIBUTION DATE: APRIL 14, 2005
MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions on or prior to the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ___________
______________________________________ account number ______________ or, if
mailed by check, to ______________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
EXHIBIT A-25
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE
TRUSTEE TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR 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), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR
TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS
CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH
PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO
PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: TRUSTEE: XXXXX FARGO BANK, NATIONAL
AS OF MARCH 1, 2005 ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005 NO. R-III-1
FIRST DISTRIBUTION DATE: APRIL 14, 2005
MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the Master Servicer and the Special Servicer, a summary of certain of the
pertinent provisions of which is set forth hereafter. The Trust consists
primarily of the Mortgage Loans, such amounts as shall from time to time be held
in the Certificate Account and Distribution Account, the Insurance Policies and
any REO Properties. To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions on or prior to the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of theCertificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________ account number ______________ or, if mailed by
check, to ______________________________________. Statements should be mailed to
____________________. This information is provided by assignee named above, or
_______________________, as its agent.
EXHIBIT A-26
[FORM OF CLASS R-MM CERTIFICATE]
THIS CLASS R-MM CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-MM CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE TRUSTEE TO
THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE
POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE
HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR 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), (B) AN ORGANIZATION (OTHER THAN
CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS
EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION
IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS
TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN
SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES
(A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"),
(D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE
LAWS OF, THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR
TRUST WHOSE INCOME FROM SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS
INCOME FOR UNITED STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS
CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH
PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN
AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO
PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR
COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-MM CERTIFICATE TO A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A
DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER
PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE. EACH HOLDER OF A CLASS R-MM CERTIFICATE BY ACCEPTANCE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
PERCENTAGE INTEREST OF THIS CLASS R-MM SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: TRUSTEE: XXXXX FARGO BANK, NATIONAL
AS OF MARCH 1, 2005 ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005 NO. R-MM-1
FIRST DISTRIBUTION DATE: APRIL 14, 2005
MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
CLASS R-MM CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-MM Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Master Servicer and the Special Servicer, a summary of certain of the pertinent
provisions of which is set forth hereafter. The Trust consists primarily of the
Mortgage Loans, such amounts as shall from time to time be held in the
Certificate Account and Distribution Account, the Insurance Policies and any REO
Properties. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-MM Certificates specified on the face hereof. The Certificates are designated
as the Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 14th day of each month or, if such 14th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to
Certificateholders will be made by wire transfer in immediately available funds
to the account specified by the Certificateholder, at a bank or other entity
having appropriate facilities therefor, if such Certificateholder will have
provided the Trustee with wiring instructions on or prior to the related Record
Date or otherwise by check mailed to such Certificateholder. Notwithstanding the
above, the final distribution on any Certificate will be made only upon
presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof. The parties
designated in the Pooling and Servicing Agreement may exercise their option to
purchase the Mortgage Loans and any other property remaining in the Trust and
cause the termination of the Trust in accordance with the requirements set forth
in the Pooling and Servicing Agreement. Upon termination of the Trust and
payment of the Certificates and of all administrative expenses associated with
the Trust, any remaining assets of the Trust shall be distributed to the holders
of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-MM CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ______________
___________________________________ account number ______________ or, if mailed
by check, to _______ ______________________________. Statements should be mailed
to ____________________. This information is provided by assignee named above,
or _______________________, as its agent.
EXHIBIT A-27
[FORM OF CLASS X-1 CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: 0.047% MASTER SERVICER: MIDLAND LOAN
SERVICES, INC.
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-1
CERTIFICATE: $1,533,690,515.20 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005
CUSIP NO. : 61745M 3N 1
FIRST DISTRIBUTION DATE: APRIL 14, 2005
AGGREGATE NOTIONAL AMOUNT OF THE CLASS
X-1 CERTIFICATES AS OF THE CLOSING DATE:
$1,533,690,515.20 (SUBJECT TO SCHEDULE
OF EXCHANGES ATTACHED)
No. X-1-1
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-1 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 14th day of each month or,
if such 14th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in whole or in
part for one or more Global Certificates only (i) on or after the termination of
the 40-day distribution compliance period (as defined in Regulation S) and (ii)
upon presentation of a Regulation S Certificate (as defined in the Pooling
Agreement) required by Article III of the Pooling and Servicing Agreement. Upon
exchange of this Regulation S Temporary Global Certificate for one or more
Global Certificates, the Trustee shall cancel this Regulation S Temporary Global
Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
X-1 Certificates will be issued in denominations of $100,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of _______________
__________________________________ account number ______________ or, if mailed
by check, to _______________________________________. Statements should be
mailed to ____________________. This information is provided by assignee named
above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-28
[FORM OF CLASS X-2 CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE MASTER
SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE TRUSTEE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5
INITIAL PASS-THROUGH RATE: % MASTER SERVICER: MIDLAND LOAN SERVICES,
INC.
INITIAL NOTIONAL AMOUNT OF THIS
CLASS X-2 CERTIFICATE: $ SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE
CORPORATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF MARCH 1, 2005 TRUSTEE: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: MARCH 1, 2005
CLOSING DATE: MARCH 31, 2005
CUSIP NO:
FIRST DISTRIBUTION DATE: APRIL 14,
2005
AGGREGATE NOTIONAL AMOUNT OF THE
CLASS X-2 CERTIFICATES AS OF THE
CLOSING DATE: $ (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
No. X-2-1
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the Master Servicer and
the Special Servicer, a summary of certain of the pertinent provisions of which
is set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Notional Amount of this Certificate
specified on the face hereof by the initial aggregate Notional Amount of the
Class X-2 Certificates. The Certificates are designated as the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-HQ5
and are issued in the Classes specified in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 14th day of each month or,
if such 14th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Trustee by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Trustee with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Trustee, duly
endorsed by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more
new Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
X-2 Certificates will be issued in denominations of $100,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Master Servicer, the Special Servicer
and any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, the Master Servicer, the Special Servicer, nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee created hereby
(other than the obligation of the Trustee to make payments to the
Certificateholders as set forth in Section 10.2 of the Pooling and Servicing
Agreement and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
and (B) the disposition of all REO Property or (ii) the sale of the property
held by the Trust in accordance with Section 10.1(b) or 10.1(c) of the Pooling
and Servicing Agreement or (iii) the termination of the Trust pursuant to
Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Trustee has executed this Certificate under the Pooling and
Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
AUTHORIZED SIGNATORY
Dated: March 31, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
--------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act _______________________
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
___________________________ IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________ __________________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated: ___________________________ __________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
----------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by a
member firm of the New York Stock Exchange or
another national securities exchange.
Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to__________________ for the account of ____________
________________________________________________________ account number ________
______________ or, if mailed by check, to ____________________________________.
Statements should be mailed to __________________________. This information is
provided by assignee named above, or __________________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
March __, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc.
[address]
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CWCapital LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust (CMBS), Xxxxxx Xxxxxxx 2005-HQ5
Facsimile Number: (000) 000-0000
[Operating Advisor]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ5
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in 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" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the REMIC III Regular Interests.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
_________, 2005
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc.
[address]
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CWCapital LLC
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust (CMBS), Xxxxxx Xxxxxxx 2005-HQ5
Facsimile Number: (000) 000-0000
[Operating Advisor]
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ5
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to
clauses (i), (ii), (iv), (v), (vi), (viii), (x) and (xii) of the definition of
"Mortgage File," and any documents required to be included in the Mortgage File
pursuant to all other clauses of the definition of "Mortgage File," to the
extent known by a Responsible Officer of the Trustee to be required pursuant to
the Pooling and Servicing Agreement, are in its possession, (b) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, (c) based on its examination and only as to the Mortgage Note and
the Mortgage, the street address of the Mortgaged Property and the name of the
Mortgagor set forth in the Mortgage Loan Schedule accurately reflects the
information contained in the documents in the Mortgage File, and (d) each
Mortgage Note has been endorsed. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Trustee Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the REMIC III Regular Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
XXXXX FARGO BANK, NA.,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: Xxxxx Fargo Bank, N.A., as Trustee
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Asset-Backed Securities Trust Services Group
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5
Re: Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5
DATE: _________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of March 1,
2005 by and among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Midland Loan
Services, Inc., as Master Servicer, GMAC Commercial Mortgage Corporation, as
Special Servicer and Xxxxx Fargo Bank, National Association, as Trustee (the
"Pooling and Servicing Agreement"), the undersigned hereby requests a release of
the Trustee Mortgage File held by you as Trustee with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
____ 1. Mortgage Loan paid in full. (The [Master] [Special] Servicer
hereby certifies that all amounts received in connection with the
Mortgage Loan have been or will be, following the [Master]
[Special] Servicer's release of the Trustee Mortgage File,
credited to the Certificate Account or the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
____ 2. Mortgage Loan repurchased. (The [Master] [Special] Servicer
hereby certifies that the Purchase Price has been credited to the
Distribution Account pursuant to the Pooling and Servicing
Agreement.)
____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
____ 5. The Mortgage Loan is being foreclosed.
____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will
be held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:
------------------------------------
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
a Certificate (the "Transferred Certificate") having an initial Certificate
Balance or Notional Amount as of March ___, 2005 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1, 2005,
among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Midland
Loan Services, Inc., as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer and Xxxxx Fargo Bank, National Association, as trustee (in
such capacity, the "Trustee"). All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e)
hereof) would constitute a distribution of any Certificate under the
Securities Act of 1933, as amended (the "Securities Act"), or would render
the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration
or qualification of any Certificate pursuant to the Securities Act or any
state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates having an initial Certificate Balance or Notional
Amount as of March ___, 2005 (the "Settlement Date") of $__________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 2005 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Midland Loan Services,
Inc., as master servicer, GMAC Commercial Mortgage Corporation, as special
servicer and Xxxxx Fargo Bank, National Association, as trustee (in such
capacity, the "Trustee"). All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
3. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be
made on the Transferred Certificates. The Transferee has attached hereto
either (i) a duly executed IRS Form W-8BEN (or successor form), which
identifies the Transferee as the beneficial owner of the Transferred
Certificates and states that the Transferee is not a U.S. Person, (ii) Form
W-8IMY (with appropriate attachments) or (iii) two duly executed copies of
IRS Form W-8ECI (or successor form), which identify the Transferee as the
beneficial owner of the Transferred Certificates and states that interest
and original issue discount on the Transferred Certificates is, or is
expected to be, effectively connected with a U.S. trade or business. The
Transferee agrees to provide to the Certificate Registrar (or its agent)
updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI, as the case
may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar (or its agent) may reasonably request, on or
before the date that any such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any event requiring a change
in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or
partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United
States, any State thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate the income of which is subject to U.S. federal income taxation
regardless of its source, or 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 fiduciaries have the authority to control all
substantial decisions of such trust (or, to the extent provided in
applicable Treasury Regulations, certain trusts in existence on August 20,
1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
----------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Yes [_] No [_] Will the Transferee be purchasing the Transferred
Certificate only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Yes [_] No [_] Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account
6. If the answer to the foregoing question is "no", then
in each case where the Transferee is purchasing for an account other
than its own, such account belongs to a third party that is itself a
"qualified institutional buyer" within the meaning of Rule 144A, and
the "qualified institutional buyer" status of such third party has
been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and
conclusions herein. Until such notice, the Transferee's purchase of
the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates having an initial Certificate
Balance or Notional Amount as of March ___, 2005 (the "Settlement Date") of
$__________ (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, (the "Pooling and Servicing Agreement") dated as of March 1, 2005,
Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"), Midland Loan
Services, Inc., as master servicer, GMAC Commercial Mortgage Corporation, as
special servicer and Xxxxx Fargo Bank, National Association, as trustee (the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has
received either: (A) a certificate from the Certificateholder desiring to effect
such transfer substantially in the form attached as Exhibit D-1 to the Pooling
and Servicing Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as Exhibit D-2A
or as Exhibit D-2B to the Pooling and Servicing Agreement; or (C) an opinion of
counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor and/or
transferee setting forth the facts surrounding the transfer upon which such
opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class F, Class G or Class
H Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR
TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN
OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Certificate, any interest in any
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized or will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to any Certificate,
any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two
duly executed copies of IRS Form W-8ECI (or successor form), which identify the
Transferee as the beneficial owner of the Transferred Certificates and states
that interest and original issue discount on the Transferred Certificates is, or
is expected to be, effectively connected with a U.S. trade or business. The
Transferee agrees to provide to the Certificate Registrar (or its agent) updated
IRS Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI, as the case may be, any
applicable successor IRS forms, or such other certifications as the Certificate
Registrar (or its agent) may reasonably request, on or before the date that any
such IRS form or certification expires or becomes obsolete, or promptly after
the occurrence of any event requiring a change in the most recent IRS form of
certification furnished by it to the Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or 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 fiduciaries have
the authority to control all substantial decisions of such trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ5 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of March ___, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2005, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Midland Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer and Xxxxx Fargo Bank, National Association, as
trustee (in such capacity, the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) none of the Depositor, the
Trustee or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
JULY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class F, Class G and Class
H Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate, any interest in any Certificate or any other similar
security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or 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 fiduciaries have
the authority to control all substantial decisions of such trust (or,
to the extent provided in applicable Treasury Regulations, certain trusts in
existence on August 20, 1996 which are eligible to elect to be treated as U.S.
Persons).
The Depositor and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ5 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of March ___, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2005, among Xxxxxx Xxxxxxx Capital I Inc., as depositor (the "Depositor"),
Midland Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer and Xxxxx Fargo Bank, National Association, as
trustee (in such capacity, the "Trustee"). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, and
for the benefit of the Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that
the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificate for its own account or for the account of
a qualified institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or (ii) sold or transferred in
transactions which are exempt from such registration and qualification and the
Certificate Owner desiring to effect such transfer has received either (A) a
certification
from such Certificate Owner's prospective transferee (substantially in the form
attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
JULY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class F, Class G and Class
H Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
7. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) may reasonably
request, on or before the date that any such IRS form or certification expires
or becomes obsolete, or promptly after the occurrence of any event requiring a
change in the most recent IRS form of certification furnished by it to the
Certificate Registrar (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or 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 fiduciaries have
the authority to control all substantial decisions of such trust (or, to the
extent provided in applicable Treasury Regulations, certain trusts in existence
on August 20, 1996 which are eligible to elect to be treated as U.S. Persons).
The Depositor and the Trustee are entitled to rely upon this letter
and are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
----------
(2) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Yes [_] No [_] Will the Transferee be purchasing the Transferred
Certificate only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
___ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Yes [_] No [_] Will the Transferee be purchasing the Transferred
Certificate only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005- HQ5, Class [R-I]
[R-II] [R-III] [R-EA], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement as amended and restated pursuant to which the Residual Certificates
were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee (i) is, and as of the date of transfer will be, a
"Qualified Institutional Buyer" and will endeavor to remain a "Qualified
Institutional Buyer" for so long as it holds the Residual Certificates, and (ii)
is acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Qualified Institutional Buyer"
is a qualified institutional buyer qualifying pursuant to Rule 144A under the
Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such
transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
5. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee's taxpayer identification number is ______________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (ii)(G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
11. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
12. The Transferee 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.
13. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any
consideration paid to it to acquire the Class R Certificate in accordance with
U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by
computing present values using a discount rate equal to the Federal short-term
rate prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
[b] The transfer of the Class R Certificate complies with Treasury
Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Treasury Regulation Section 1.860E-1(c)(6), as to which income from the Class R
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the Transferee's fiscal year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of Treasury
Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a
principal purpose for holding or acquiring that asset is to permit the
Transferee to satisfy this Section 15(ii)) in excess of $100 million and net
assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to
another "eligible corporation," as defined in Treasury Regulation Section
1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury
Regulation Section 1.860E-1(c)(i), (ii), and (iii) and this Section 15 and the
transfer is not to a foreign permanent establishment (within the meaning of an
applicable income tax treaty) of such eligible corporation or any other
arrangement by which the Class R Certificate will be at any time subject to net
tax by a foreign country or possession of the United States; and
(iv) the Transferee determined the consideration paid to it to acquire
the Class R Certificate, based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith, is a reasonable amount.
16. The Transferee (i) is, and at the time of transfer will be, a
United States Tax Person and (ii) is not, and at the time of the transfer will
not be, a foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty, of any United States Tax Person. If the
Transferee is a partnership trust or disregarded entity for U.S. federal income
tax purposes, then each person that may be allocated income from the Class R
Certificate is, and at the time of transfer will be, a United States Tax Person.
17. The Transferee has historically paid its debts as they have come
due and will continue to do so in the future.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this ___
day of _______, ___.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
________, 20__
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
6th and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ5 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] [Class R-EA] Certificates evidencing a
____% Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 2005 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc., as depositor,
Midland Loan Services, Inc., as master servicer, GMAC Commercial Mortgage
Corporation, as special servicer and Xxxxx Fargo Bank, National Association, as
trustee. All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the transfer of
the Residual Certificates may not be
respected for United States income tax purposes (and the Transferor may continue
to be liable for United States income taxes associated therewith) unless the
Transferor has conducted such an investigation.
4. The Transferor does not know and has no reason to know that the
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.
5. The Transferor does not know and has no reason to know that the
Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5, CLASS (THE "CERTIFICATES")
TO: Euroclear System
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non -U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: , 2005
--------
By:
------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
EXHIBIT G-1
[RESERVED]
EXHIBIT G-2
[RESERVED]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Midland Loan Services, Inc., as Master Servicer
Xxxxx Fargo Bank, National Association,
as Trustee
This is to notify you as to the transfer of the beneficial interest in
$_______________ of Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-HQ5, Class __(the "Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the
1933 Act][an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in accordance
with any applicable securities laws of any state of the United States and, if
the purchaser has purchased the Certificates for one or more accounts for which
it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate(3) for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than
U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial
or other Executive Officer]
----------
(3) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON
ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN
GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-HQ5, CLASS ___ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Trustee
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of March 1, 2005 (the "Pooling and Servicing
Agreement") among you, Xxxxxx Xxxxxxx Capital I Inc., as depositor, Midland Loan
Services, Inc., as master servicer and GMAC Commercial Mortgage Corporation, as
special servicer, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, Brussels office, as operator of
the Euroclear System]
or
[CLEARSTREAM]
By:
------------------------------------
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
See Attached
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (MSMC)
[UNDER SEPARATE TAB]
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT (CWCAPITAL)
[UNDER SEPARATE TAB]
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/01/03]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN THE FORM OF STATEMENT TO
CERTIFICATEHOLDERS IN THE
PROSPECTUS SUPPLEMENT
EXHIBIT N
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[Available At CMSA Website version 3.0 dated 4/01/03]
EXHIBIT O
[RESERVED]
EXHIBIT P
[RESERVED]
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
MIDLAND LOAN SERVICES, INC.
AND WHEN RECORDED MAIL TO:
MIDLAND LOAN SERVICES, INC.
[address]
Attention: [_____________]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that XXXXX FARGO BANK, N.A., as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2005 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint MIDLAND LOAN SERVICES,
INC., as Master Servicer under the Pooling and Servicing Agreement ("Midland"),
as its true and lawful attorney-in-fact for it and in its name, place, stead and
for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Midland to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by Midland
of its duties as Master Servicer under the Pooling and Servicing Agreement,
giving and granting unto Midland full power and authority to do and perform any
and every act necessary, requisite, or proper in connection with the foregoing
and hereby ratifying, approving or confirming all that Midland shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ___________, 2005.
XXXXX FARGO BANK, N.A.,
as trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
================================================================================
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ___________________ before me, __________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Signature of Notary
(Affix seal in the above blank space)
================================================================================
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
GMAC COMMERCIAL MORTGAGE CORPORATION
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Commercial Mortgage Pass-
Through Certificates Series 2005-HQ5
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that XXXXX FARGO BANK, N.A., as
trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 ("Trustee"), under that certain Pooling and
Servicing Agreement dated as of March 1, 2005 (the "Pooling and Servicing
Agreement"), does hereby nominate, constitute and appoint GMAC COMMERCIAL
MORTGAGE CORPORATION, as Special Servicer under the Pooling and Servicing
Agreement ("GMAC"), as its true and lawful attorney-in-fact for it and in its
name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable GMAC to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by GMAC of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting unto GMAC full power and authority to do and perform any and every
act necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that GMAC shall lawfully do or cause to
be done by virtue hereof.
S-2-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of __________, 2005.
XXXXX FARGO BANK, N.A.,
as trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates,
Series 2005-HQ5
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
S-2-2
================================================================================
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ___________________ before me, __________________________________
Date Name and Title of Officer (i.e., Your
Name, Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------
Signature of Notary
(Affix seal in the above blank space)
================================================================================
S-2-3
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimated stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U
Form of Assignment and Assumption Submission to Special Servicer
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: PROPERTY ADDRESS
CITY, STATE, ZIP CODE
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
A. INSURANCE ESCROW BALANCE: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
------------------------------------------------------------
Purchase price $
------------------------------------------------------------
Buyer down payment $ (%)
------------------------------------------------------------
Estimated closing date
------------------------------------------------------------
1% loan fee split: Principal 40% - $
------------------------------------------------------------
Midland, Master Serv. 10% - $
------------------------------------------------------------
GMAC, Special Serv. 50% - $
------------------------------------------------------------
Most recent appraised value according to appraisal $
in Primary Servicer's possession
------------------------------------------------------------
Loan-to-value as if initial underwriting %
------------------------------------------------------------
Occupancy as of %
------------------------------------------------------------
12/31/__ NOI $
------------------------------------------------------------
Debt service coverage as of x
------------------------------------------------------------
FINANCIAL CONDITION OF PROPOSED MORTGAGOR/GUARANTOR:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
PROPERTY FINANCIAL SUMMARY: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
NEW ENVIRONMENTAL AND ENGINEERING DEVELOPMENTS (IF ANY) AND STATUS OF ISSUES
IDENTIFIED IN ORIGINAL REPORTS OR LOAN DOCUMENTS AS NEEDING REMEDIATION: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
ESCROW STATUS:
1. Explain status of all reserves
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. STATE RECOMMENDATION FOR APPROVAL.
2. HIGHLIGHT STRENGTHS AND WEAKNESSES. HOW ARE WEAKNESSES MITIGATED? (BULLET
POINTS ARE FINE)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
By:
---------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
Consent to Assignment & Assumption is given:
GMAC COMMERCIAL MORTGAGE CORPORATION,
acting solely in its capacity as Special Servicer
By:
---------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
EXHIBIT V
Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing Submission
Package to the Special Services
MORTGAGOR:
MASTER SERVICER LOAN #:
PRIMARY SERVICER LOAN #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS OF PROPERTY:
ASSET STATUS As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine financing
contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
--------------------------------------------------------------------------------
Estimated closing date for financing:
--------------------------------------------------------------------------------
Administrative fee to Primary Servicer $
--------------------------------------------------------------------------------
Additional Fees, if any $
(50%: Special Servicer; 10%: Master Servicer; 40%:
Primary Servicer
--------------------------------------------------------------------------------
Most recent appraised value according to appraisal $
in Primary Servicer's possession
--------------------------------------------------------------------------------
Loan-to-value as of initial underwriting %
--------------------------------------------------------------------------------
Occupancy as of %
--------------------------------------------------------------------------------
12/31/__ NOI $
--------------------------------------------------------------------------------
Debt service coverage as of x
--------------------------------------------------------------------------------
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
ESCROW STATUS:
1. Explain status of all Reserves
COLLATERAL VALUATION:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. STATE RECOMMENDATION FOR APPROVAL.
2. HIGHLIGHT STRENGTHS AND WEAKNESSES. HOW ARE WEAKNESSES MITIGATED? (BULLET
POINTS ARE FINE)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
By:
---------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
GMAC COMMERCIAL MORTGAGE CORPORATION,
acting solely in its capacity as Special Servicer
By:
---------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
SCHEDULE OF EXHIBITS TO ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE
FINANCING SUBMISSION
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [FOR MEZZANINE FINANCING: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [FOR SUBORDINATE MORTGAGE: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
EXHIBIT W
RESTRICTED SERVICER REPORTS
[RESERVED]
EXHIBIT X
UNRESTRICTED SERVICER REPORTS
[RESERVED]
EXHIBIT Y
[Investor Certificate]
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005- HQ5
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2005 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Midland Loan Services, Inc., as Master Servicer,
GMAC Commercial Mortgage Corporation, as Special Servicer and Xxxxx
Fargo Bank, N.A. as Trustee (the "Trustee"), with respect to the above
referenced certificates (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
2. The undersigned is requesting access to the Trustee's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making an evaluation in connection with purchasing the related
Certificates, from its accountants and attorneys, and otherwise from such
governmental or banking authorities or agencies to which the undersigned is
subject), and such Information will not, without the prior written consent
of the Trustee, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or
in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Trustee and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
------------------------------------------
Beneficial Owner or Prospective Purchaser
By:
--------------------------------------
Title:
-----------------------------------
Company:
---------------------------------
Phone:
-----------------------------------
EXHIBIT Z
Form of Notice and Certification
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn:
From: _____________________________________, in its capacity as Servicer (the
"Servicer") under the Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement"), among the
Servicer, __________________as Trustee, and others.
Date: _________, 20___
Re: _______________________________________.
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
2. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the
type checked below:
____ a full defeasance of the payments scheduled to be due
in respect of the entire Principal Balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the Principal Balance of
the
Mortgage Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire Principal Balance;
3. CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE
EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A HERETO,
WHICH EXCEPTIONS THE SERVICER HAS DETERMINED, CONSISTENT WITH THE
SERVICING STANDARD, WILL HAVE NO MATERIAL ADVERSE EFFECT ON THE
MORTGAGE LOAN OR THE DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND
THE TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED THEREIN
WERE SATISFIED IN ALL MATERIAL RESPECTS IN COMPLETING THE
DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT
(I) CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN SECTION
2(A)(16) OF THE INVESTMENT COMPANY ACT OF 1940 AS AMENDED
(15 U.S.C. 80A-1), (II) ARE LISTED AS "QUALIFIED INVESTMENTS
FOR 'AAA' FINANCINGS" UNDER PARAGRAPHS 1, 2 OR 3 OF "CASH
FLOW APPROACH" IN STANDARD & POOR'S PUBLIC FINANCE CRITERIA
2000, AS AMENDED TO THE DATE OF THE DEFEASANCE, (III) ARE
RATED 'AAA' BY STANDARD & POOR'S, (IV) IF THEY INCLUDE A
PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY CANNOT
VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL
OR EARLY REDEMPTION. SUCH SECURITIES HAVE THE
CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM
COUNSEL APPROVED BY SERVICER IN ACCORDANCE WITH THE
SERVICING STANDARD) THAT THE DEFEASANCE WILL NOT RESULT IN
AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL
WILL BE OWNED BY AN ENTITY (THE "DEFEASANCE OBLIGOR") AS TO
WHICH ONE OF THE STATEMENTS CHECKED BELOW IS TRUE:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of the date of
the defeasance, and after the defeasance owns no assets
other than the defeasance collateral and real property
securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION
OF THE CREDIT, OR THE ACCOUNTANT'S LETTER DESCRIBED BELOW
CONTAINED STATEMENTS THAT IT REVIEWED A BROKER OR SIMILAR
CONFIRMATION OF THE CREDIT, OF THE DEFEASANCE COLLATERAL TO
AN ELIGIBLE ACCOUNT (AS DEFINED IN THE S&P CRITERIA) IN THE
NAME OF THE DEFEASANCE OBLIGOR, WHICH ACCOUNT IS MAINTAINED
AS A SECURITIES ACCOUNT BY THE TRUSTEE ACTING AS A
SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO
MAKE THE SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE
PROCEEDS OF THE DEFEASANCE COLLATERAL DIRECTLY TO THE
SERVICER'S COLLECTION ACCOUNT IN THE AMOUNTS AND ON THE
DATES SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS OR, IN A
PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED PAYMENTS
ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE REAL
PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE PREMIUM
SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS (THE "SCHEDULED
PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN
CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN ACCORDANCE
WITH THE SERVICING STANDARD, STATING THAT (I) REVENUES FROM
PRINCIPAL AND INTEREST PAYMENTS MADE ON THE DEFEASANCE
COLLATERAL (WITHOUT TAKING INTO ACCOUNT ANY EARNINGS ON
REINVESTMENT OF SUCH REVENUES) WILL BE SUFFICIENT TO TIMELY
PAY EACH OF THE SCHEDULED PAYMENTS AFTER THE DEFEASANCE
INCLUDING THE PAYMENT IN FULL OF THE MORTGAGE LOAN (OR THE
ALLOCATED PORTION THEREOF IN CONNECTION WITH A PARTIAL
DEFEASANCE) ON ITS MATURITY DATE (OR, IN THE CASE OF AN ARD
LOAN, ON ITS ANTICIPATED REPAYMENT DATE), (II) THE REVENUES
RECEIVED IN ANY MONTH FROM THE DEFEASANCE COLLATERAL WILL BE
APPLIED TO MAKE SCHEDULED PAYMENTS WITHIN FOUR (4) MONTHS
AFTER THE DATE OF RECEIPT, AND (III) INTEREST INCOME FROM
THE DEFEASANCE COLLATERAL TO THE DEFEASANCE OBLIGOR IN ANY
CALENDAR OR FISCAL YEAR WILL NOT EXCEED SUCH DEFEASANCE
OBLIGOR'S INTEREST EXPENSE FOR THE MORTGAGE LOAN (OR THE
ALLOCATED PORTION THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH
YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING
STANDARD, THAT (I) THE AGREEMENTS EXECUTED BY THE MORTGAGOR
AND/OR THE DEFEASANCE OBLIGOR IN CONNECTION WITH THE
DEFEASANCE ARE ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH
THEIR TERMS, AND (II) THE TRUSTEE WILL HAVE A PERFECTED,
FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE
DEFEASANCE (I) PERMIT REINVESTMENT OF PROCEEDS OF THE
DEFEASANCE COLLATERAL ONLY IN PERMITTED INVESTMENTS (AS
DEFINED IN THE S&P CRITERIA), (II) PERMIT RELEASE OF SURPLUS
DEFEASANCE COLLATERAL AND EARNINGS ON REINVESTMENT TO THE
DEFEASANCE OBLIGOR OR THE MORTGAGOR ONLY AFTER THE MORTGAGE
LOAN HAS BEEN PAID IN FULL, IF ANY SUCH RELEASE IS
PERMITTED, (III) PROHIBIT ANY SUBORDINATE LIENS AGAINST THE
DEFEASANCE COLLATERAL, AND (IV) PROVIDE FOR PAYMENT FROM
SOURCES OTHER THAN THE DEFEASANCE COLLATERAL OR OTHER ASSETS
OF THE DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE
SECURITIES INTERMEDIARY FOR ADMINISTERING THE DEFEASANCE AND
THE SECURITIES ACCOUNT AND ALL FEES AND EXPENSES OF
MAINTAINING THE EXISTENCE OF THE DEFEASANCE OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF
THE DATE OF DEFEASANCE WAS $___________ [$5,000,000 OR LESS
OR LESS THAN ONE PERCENT OF POOL BALANCE, WHICHEVER IS LESS]
WHICH IS LESS THAN 1% OF THE AGGREGATE CERTIFICATE BALANCE
OF THE CERTIFICATES AS OF THE DATE OF THE MOST RECENT PAYING
AGENT'S MONTHLY CERTIFICATEHOLDER REPORT RECEIVED BY US (THE
"CURRENT REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL
PRIOR AND SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS, BRINGS
THE TOTAL OF ALL FULLY AND PARTIALLY DEFEASED MORTGAGE LOANS
TO $__________________, WHICH IS _____% OF THE AGGREGATE
CERTIFICATE BALANCE OF THE CERTIFICATES AS OF THE DATE OF
THE CURRENT REPORT.
4. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS
IMPOSED SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT TO
THE LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS ARE
CONSISTENT WITH THE SERVICING STANDARD.
5. CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL
AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE
DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT
ACCOUNTANTS EXECUTED AND DELIVERED IN CONNECTION WITH THE
DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS OR COPIES OF SUCH
AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN TRANSMITTED TO THE
TRUSTEE FOR PLACEMENT IN THE RELATED MORTGAGE FILE OR, TO THE
EXTENT NOT REQUIRED TO BE PART OF THE RELATED MORTGAGE FILE, ARE
IN THE POSSESSION OF THE SERVICER AS PART OF THE SERVICER'S
MORTGAGE FILE.
6. CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND
CERTIFICATIONS DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH
THE SERVICING STANDARD SET FORTH IN, AND THE OTHER APPLICABLE
TERMS AND CONDITIONS OF, THE POOLING AND SERVICING AGREEMENT.
7. CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER
HAS CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID
CONSTITUTE A SERVICING OFFICER AS OF THE DATE OF THE DEFEASANCE
DESCRIBED ABOVE.
8. AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO
YOU UPON REQUEST.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER:
------------------------------
By:
------------------------------------
Name:
Title:
EXHIBIT AA
Form of Primary Servicing Agreement
(Midland)
[Under Separate Tab]
EXHIBIT BB
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
----------------------------------------------------------------------------------------------------
Information Format Frequency
----------------------------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
----------------------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
----------------------------------------------------------------------------------------------------
Other Financials as required by loan Actual PDF/TIF As received
documents
----------------------------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
----------------------------------------------------------------------------------------------------
Payments Received After Determination Monthly Excel Master Servicer Remittance Date
Date Report (1)
----------------------------------------------------------------------------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month
----------------------------------------------------------------------------------------------------
Interest on Advance Reconciliation Monthly Excel Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Collateral File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
----------------------------------------------------------------------------------------------------
Documentation Exceptions Report (Paying Quarterly Access/Excel Monthly/Distribution Date
Agent)
----------------------------------------------------------------------------------------------------
Footnotes:
1) On the Master Servicer Remittance Date following each Determination
Date, a list of all Mortgage Loans which are delinquent as to the
applicable Collection Period on that Master Servicer Remittance Date.
This list should represent all delinquent Mortgage Loans that required
a P&I Advance to be made.
2) On the last day of the month (30th), for all delinquencies reported in
#1 above, a list of all Mortgage Loans which remain delinquent for
such Collection Period (along with the number of days delinquent),
accompanied with any reason, in the Master Servicer's opinion, for the
continued delinquency of such Mortgage Loans, along with an
explanation of the Master Servicer's attempts to cure.
3) GMAC requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed
dates via E-Mail to the following address, or all reports and data
files shall be available via the Master Servicer's or the Trustee's
Website.
EXHIBIT CC
Form of Performance Certification
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: Xxxxxx Xxxxxxx Capital I Inc. Trust 2005-HQ5 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2005-HQ5, issued pursuant
to the Pooling and Servicing Agreement, dated as of March 1, 2005 (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I
Inc., as depositor (the "Depositor"), Midland Loan Services, Inc., as
master servicer (the "Master Servicer"), GMAC Commercial Mortgage
Corporation, as special servicer (the "Special Servicer") and Xxxxx
Fargo Bank, National Association, as Trustee (the "Trustee").
Capitalized terms used herein but not defined herein have the
respective meanings given them in the Pooling and Servicing Agreement.
I, [identify the certifying individual], certify to the Depositor [and the
Trustee] [add for certifications signed by an officer of the Master Servicer or
the Special Servicer], and [its][their] [add for certifications signed by an
officer of the Master Servicer or the Special Servicer] officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. [To be certified by the Trustee] [I have reviewed the annual
report on Form 10-K for the fiscal year [___] (the "Annual
Report"), and all reports on Form 8-K containing distribution
reports filed in respect of periods included in the year covered
by the Annual Report (collectively with the Annual Report, the
"Reports"), of the Trust;]
2. [To be certified by the Trustee] [To the best of my knowledge,
the information in the Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made,
not misleading as of the last day of the period covered by the
Annual Report;]
3. [To be covered by the Trustee] [To the best of my knowledge, the
distribution or servicing information required to be provided to
the Trustee by the Master Servicer, the Special Servicer under
the Pooling and Servicing Agreement for inclusion in the Reports
is included in the Reports;]
4. [To be certified by each of the Master Servicer and the Special
Servicer] [I am responsible for reviewing the activities
performed by the [Master Servicer] [Special Servicer] under the
Pooling and Servicing Agreement
and based upon my knowledge and the annual compliance review
performed as required under Section [8.12] [9.18] of the Pooling
and Servicing Agreement, and except as disclosed in the
compliance certificate delivered pursuant to Section [8.12]
[9.18] of the Pooling and Servicing Agreement, the [Master
Servicer] [Special Servicer] has fulfilled its material
obligations under the Pooling and Servicing Agreement; and]
5. [To be certified by each of the Master Servicer and the General
Special Servicer] [I have disclosed to the [Master Servicer's]
[Special Servicer's] certified public accountants all significant
deficiencies, to my knowledge, relating to the compliance of the
[Master Servicer] [Special Servicer] with the minimum servicing
standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers
or similar standard as set forth in the Pooling and Servicing
Agreement.]
Date:
--------------------------
--------------------------------
[Signature]
[Title]
[EXHIBIT DD
FORM OF TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
March 31, 2005
[INSERT ADDRESSES OF RELATED TRUSTEE, MASTER SERVICER AND SPECIAL SERVICER]
[Holders of the [Name of Non-Serviced Companion Loans]]
Re: Xxxxxx Xxxxxxx Capital I Trust 2005-HQ5, Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 - [Name of Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Trust 2005-HQ5, Commercial Mortgage Pass-Through
Certificates, Series 2005-HQ5 (the "Trust Fund") is the [_________] Noteholder,
as such term is defined under the [description of intercreditor agreement] (the
"Intercreditor Agreement"). In connection with the deposit of the [___] Note of
the [Non-Serviced Mortgage Loan] into the Xxxxxx Xxxxxxx Capital I Trust
2005-HQ5 established by Xxxxxx Xxxxxxx Capital I Inc., the contact information
for each of the parties to the related pooling and servicing agreement are set
forth on Schedule I attached hereto.
The [Non-Serviced Mortgage Loan] is being serviced pursuant to the terms of that
certain Pooling and Sevicing agreement dated as of [________], among
[_______________], as may be from time to time amended, supplemented or modified
(the "[______________] Pooling Agreement"). Xxxxx Fargo Bank, National
Association, as trustee for the registered holders of the Trust Fund (the
"Trustee"), hereby directs the applicable parties to the [______________]
Pooling Agreement as follows:
(i) Remit all amounts payable in accordance with the Intercreditor Agreement and
the [______________] Pooling Agreement due to the holder of the [___] Note of
the [Non-Serviced Mortgage Loan] on such days as specified in the
[______________] Pooling Agreement to Midland Loan Services, Inc., as master
servicer of the Trust Fund (the "Master Servicer"), and to the collection
account set forth on Schedule II attached hereto; and
(ii) Forward, deliver or otherwise make available, as the case may be, all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to the holder of the [___]
Note of the [Non-Serviced Mortgage Loan] in accordance with the Intercreditor
Agreement and the [______________] Pooling Agreement to the Trustee and the
Master Servicer.
DD-1
Thank you for your attention to this matter.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Trustee for the Holders of the Xxxxxx Xxxxxxx Capital I Trust 2005-HQ5,
Commercial Mortgage Pass-Through Certificates, Series2005-HQ5
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DD-2
SCHEDULE I TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
GMAC Commercial Mortgage Corporation, as Master Servicer
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Midland Loan Services, Inc., as Special Servicer
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Schedule I to DD
SCHEDULE II TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
(MSCI 2005-HQ5 Collection Account Information)
Schedule II to DD
SCHEDULE I
MSMC LOAN SCHEDULE
SCHEDULE II
CWCAPITAL LOAN SCHEDULE
SCHEDULE III
[RESERVED]
SCHEDULE IV
[RESERVED]
SCHEDULE V
[RESERVED]
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
CWCAPITAL - None
MSMC - None
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
CWCAPITAL - None
MSMC:
0000 X Xxxxxx - $125,000
000 Xxxxxx Xxxxxx - $500,000
00 Xxxxxx Xxxxxx - $244,062.50
0000 Xxxxxxxxxx Xxxx - $146,913
Xxxxx Xxxx Plaza - $135,858
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(A)
CWCAPITAL
GPT Portfolio: Borrower names: Charleston Federal Courthouse, LLC,
VA Venture Baton Rouge, LLC, and
DEA Bakersfield, LLC
MSMC:
See attached
SCHEDULE IX
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
SCHEDULE X
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
SCHEDULE XI
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
SCHEDULE XII
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
04/14/2008 5.62682%
05/14/2008 5.45376%
06/14/2008 5.62653%
07/14/2008 5.45343%
08/14/2008 5.60965%
09/14/2008 5.57066%
10/14/2008 5.38997%
11/14/2008 5.57060%
12/14/2008 5.38991%
01/14/2009 5.38987%
02/14/2009 5.38984%
03/14/2009 5.39024%
SCHEDULE XIII
RATES USED IN DETERMINATION OF CLASS X PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
04/14/2008 5.62682%
05/14/2008 5.45376%
06/14/2008 5.62653%
07/14/2008 5.45343%
08/14/2008 5.60965%
09/14/2008 5.57066%
10/14/2008 5.38997%
11/14/2008 5.57060%
04/14/2009 5.57043%
05/14/2009 5.38974%
06/14/2009 5.57036%
07/14/2009 5.38968%
08/14/2009 5.57030%
09/14/2009 5.57027%
10/14/2009 5.38803%
11/14/2009 5.56860%
12/14/2009 5.35352%
01/14/2010 5.35301%
02/14/2010 5.35290%
03/14/2010 5.35332%
12/14/2008 5.38991%
01/14/2009 5.38987%
02/14/2009 5.38984%
03/14/2009 5.39024%
SCHEDULE XIV
RATES USED IN DETERMINATION OF CLASS C PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
04/14/2008 5.62682%
05/14/2008 5.45376%
06/14/2008 5.62653%
07/14/2008 5.45343%
08/14/2008 5.60965%
09/14/2008 5.57066%
10/14/2008 5.38997%
04/14/2009 5.57043%
05/14/2009 5.38974%
06/14/2009 5.57036%
07/14/2009 5.38968%
08/14/2009 5.57030%
09/14/2009 5.57027%
10/14/2009 5.38803%
11/14/2009 5.56860%
12/14/2009 5.35352%
01/14/2010 5.35301%
02/14/2010 5.35290%
03/14/2010 5.35332%
04/14/2010 5.53205%
05/14/2010 5.35252%
06/14/2010 5.53180%
07/14/2010 5.35227%
08/14/2010 5.53154%
09/14/2010 5.53142%
10/14/2010 5.35190%
11/14/2010 5.53116%
12/14/2010 5.35165%
01/14/2011 5.35151%
02/14/2011 5.35139%
03/14/2011 5.35184%
11/14/2008 5.57060%
12/14/2008 5.38991%
01/14/2009 5.38987%
02/14/2009 5.38984%
03/14/2009 5.39024%
SCHEDULE XV
RATES USED IN DETERMINATION OF CLASS C PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
04/14/2008 5.62682%
05/14/2008 5.45376%
06/14/2008 5.62653%
07/14/2008 5.45343%
08/14/2008 5.60965%
09/14/2008 5.57066%
04/14/2009 5.57043%
05/14/2009 5.38974%
06/14/2009 5.57036%
07/14/2009 5.38968%
08/14/2009 5.57030%
09/14/2009 5.57027%
10/14/2009 5.38803%
11/14/2009 5.56860%
12/14/2009 5.35352%
01/14/2010 5.35301%
02/14/2010 5.35290%
03/14/2010 5.35332%
04/14/2010 5.53205%
05/14/2010 5.35252%
06/14/2010 5.53180%
07/14/2010 5.35227%
08/14/2010 5.53154%
09/14/2010 5.53142%
10/14/2010 5.35190%
11/14/2010 5.53116%
12/14/2010 5.35165%
01/14/2011 5.35151%
02/14/2011 5.35139%
03/14/2011 5.35184%
04/14/2011 5.53046%
05/14/2011 5.35097%
06/14/2011 5.53238%
07/14/2011 5.35282%
08/14/2011 5.53209%
09/14/2011 5.53196%
10/14/2011 5.35241%
11/14/2011 5.53167%
12/14/2011 5.39425%
01/14/2012 5.57775%
02/14/2012 5.39985%
03/14/2012 5.39997%
10/14/2008 5.38997%
11/14/2008 5.57060%
12/14/2008 5.38991%
01/14/2009 5.38987%
02/14/2009 5.38984%
03/14/2009 5.39024%
SCHEDULE XVI
RATES USED IN DETERMINATION OF CLASS C PASS-THROUGH RATES
("CLASS X-1 STRIP RATE" AND "CLASS X-2 STRIP RATE")
DISTRIBUTION DATE RATE
----------------- -------
04/14/2005 5.63215%
05/14/2005 5.45960%
06/14/2005 5.63189%
07/14/2005 5.45931%
08/14/2005 5.63163%
09/14/2005 5.63150%
10/14/2005 5.45887%
11/14/2005 5.63123%
12/14/2005 5.45857%
01/14/2006 5.45842%
02/14/2006 5.45827%
03/14/2006 5.45835%
04/14/2006 5.63053%
05/14/2006 5.45781%
06/14/2006 5.63025%
07/14/2006 5.45750%
08/14/2006 5.62996%
09/14/2006 5.62982%
10/14/2006 5.45702%
11/14/2006 5.62952%
12/14/2006 5.45670%
01/14/2007 5.45653%
02/14/2007 5.45637%
03/14/2007 5.45648%
04/14/2007 5.62877%
05/14/2007 5.45587%
06/14/2007 5.62845%
07/14/2007 5.45552%
08/14/2007 5.62813%
09/14/2007 5.62797%
10/14/2007 5.45498%
11/14/2007 5.62764%
12/14/2007 5.45462%
01/14/2008 5.62730%
02/14/2008 5.45425%
03/14/2008 5.45421%
04/14/2008 5.62682%
05/14/2008 5.45376%
06/14/2008 5.62653%
07/14/2008 5.45343%
08/14/2008 5.60965%
09/14/2008 5.57066%
10/14/2008 5.38997%
11/14/2008 5.57060%
04/14/2009 5.57043%
05/14/2009 5.38974%
06/14/2009 5.57036%
07/14/2009 5.38968%
08/14/2009 5.57030%
09/14/2009 5.57027%
10/14/2009 5.38803%
11/14/2009 5.56860%
12/14/2009 5.35352%
01/14/2010 5.35301%
02/14/2010 5.35290%
03/14/2010 5.35332%
04/14/2010 5.53205%
05/14/2010 5.35252%
06/14/2010 5.53180%
07/14/2010 5.35227%
08/14/2010 5.53154%
09/14/2010 5.53142%
10/14/2010 5.35190%
11/14/2010 5.53116%
12/14/2010 5.35165%
01/14/2011 5.35151%
02/14/2011 5.35139%
03/14/2011 5.35184%
04/14/2011 5.53046%
05/14/2011 5.35097%
06/14/2011 5.53238%
07/14/2011 5.35282%
08/14/2011 5.53209%
09/14/2011 5.53196%
10/14/2011 5.35241%
11/14/2011 5.53167%
12/14/2011 5.39425%
01/14/2012 5.57775%
02/14/2012 5.39985%
03/14/2012 5.39997%
04/14/2012 5.58533%
05/14/2012 5.40409%
06/14/2012 5.58509%
07/14/2012 5.40385%
08/14/2012 5.58485%
09/14/2012 5.58474%
10/14/2012 5.40350%
11/14/2012 5.58449%
12/14/2008 5.38991%
01/14/2009 5.38987%
02/14/2009 5.38984%
03/14/2009 5.39024%
12/14/2012 5.40326%
01/14/2013 5.40313%
02/14/2013 5.40302%
03/14/2013 5.40363%
SCHEDULE XVII
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
Appalacian Resort
SCHEDULE XVIII
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE
END OF A COLLECTION PERIOD
LOAN MORTGAGE LOAN
POOL NO. SELLER INTERNAL LOAN ID PROPERTY NAME DUE DATE
-------- ------------- ---------------- ------------------- --------
45 CWCapital 16028 Plaza de Oro Eleventh
49 MSMC 05-18991 Borders Books -
Pasadena Eleventh
55 CWCapital 16752 Satellite Place
Buildings Eleventh
68 MSMC 04-17472 Bridgeport Shopping
Center Ninth
71 CWCapital 16326 Boulevard Shops Eleventh
SCHEDULE XIX
LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT WHOSE SERVICING
FEES ACCRUE ON A 30/360 BASIS
NONE
SCHEDULE XX
CLASS A-AB PLANNED PRINCIPAL BALANCE
DISTRIBUTION DATE BALANCE
----------------- --------------
Closing Date $66,400,000.00
04/14/2005 $66,400,000.00
05/14/2005 $66,400,000.00
06/14/2005 $66,400,000.00
07/14/2005 $66,400,000.00
08/14/2005 $66,400,000.00
09/14/2005 $66,400,000.00
10/14/2005 $66,400,000.00
11/14/2005 $66,400,000.00
12/14/2005 $66,400,000.00
01/14/2006 $66,400,000.00
02/14/2006 $66,400,000.00
03/14/2006 $66,400,000.00
04/14/2006 $66,400,000.00
05/14/2006 $66,400,000.00
06/14/2006 $66,400,000.00
07/14/2006 $66,400,000.00
08/14/2006 $66,400,000.00
09/14/2006 $66,400,000.00
10/14/2006 $66,400,000.00
11/14/2006 $66,400,000.00
12/14/2006 $66,400,000.00
01/14/2007 $66,400,000.00
02/14/2007 $66,400,000.00
03/14/2007 $66,400,000.00
04/14/2007 $66,400,000.00
05/14/2007 $66,400,000.00
06/14/2007 $66,400,000.00
07/14/2007 $66,400,000.00
08/14/2007 $66,400,000.00
09/14/2007 $66,400,000.00
10/14/2007 $66,400,000.00
11/14/2007 $66,400,000.00
12/14/2007 $66,400,000.00
01/14/2008 $66,400,000.00
02/14/2008 $66,400,000.00
03/14/2008 $66,400,000.00
04/14/2008 $66,400,000.00
05/14/2008 $66,400,000.00
06/14/2008 $66,400,000.00
07/14/2008 $66,400,000.00
08/14/2008 $66,400,000.00
09/14/2008 $66,400,000.00
10/14/2008 $66,400,000.00
11/14/2008 $66,400,000.00
12/14/2008 $66,400,000.00
01/14/2009 $66,400,000.00
02/14/2009 $66,400,000.00
03/14/2009 $66,400,000.00
04/14/2009 $66,400,000.00
05/14/2009 $66,400,000.00
06/14/2009 $66,400,000.00
02/14/2010 $66,400,000.00
03/14/2010 $66,397,298.79
04/14/2010 $65,177,000.00
05/14/2010 $63,813,000.00
06/14/2010 $62,580,000.00
07/14/2010 $61,204,000.00
08/14/2010 $59,959,000.00
09/14/2010 $58,709,000.00
10/14/2010 $57,315,000.00
11/14/2010 $56,051,000.00
12/14/2010 $54,645,000.00
01/14/2011 $53,368,000.00
02/14/2011 $52,086,000.00
03/14/2011 $50,388,000.00
04/14/2011 $49,092,000.00
05/14/2011 $42,618,000.00
06/14/2011 $41,317,000.00
07/14/2011 $39,876,000.00
08/14/2011 $38,562,000.00
09/14/2011 $37,241,000.00
10/14/2011 $35,781,000.00
11/14/2011 $35,579,000.00
12/14/2011 $35,379,000.00
01/14/2012 $35,179,000.00
02/14/2012 $34,979,000.00
03/14/2012 $34,770,000.00
04/14/2012 $33,455,000.00
05/14/2012 $32,006,000.00
06/14/2012 $30,679,000.00
07/14/2012 $29,217,000.00
08/14/2012 $27,876,000.00
09/14/2012 $26,529,000.00
10/14/2012 $25,048,000.00
11/14/2012 $23,687,000.00
12/14/2012 $22,193,000.00
01/14/2013 $20,819,000.00
02/14/2013 $19,437,000.00
03/14/2013 $17,672,000.00
04/14/2013 $16,276,000.00
05/14/2013 $14,747,000.00
06/14/2013 $13,336,000.00
07/14/2013 $11,794,000.00
08/14/2013 $10,369,000.00
09/14/2013 $ 8,938,000.00
10/14/2013 $ 7,375,000.00
11/14/2013 $ 5,929,000.00
12/14/2013 $ 4,352,000.00
01/14/2014 $ 2,891,000.00
02/14/2014 $ 1,424,000.00
03/14/2014 $ 0.00
07/14/2009 $66,400,000.00
08/14/2009 $66,400,000.00
09/14/2009 $66,400,000.00
10/14/2009 $66,400,000.00
11/14/2009 $66,400,000.00
12/14/2009 $66,400,000.00
01/14/2010 $66,400,000.00
MSCI 2005-HQ5
Loan Loan Mortgage Cut-Off Master Servicing Excess Servicing Sub-
Pool No. No. Loan Seller Property Name Date Balance Fee (bps) Fee (bps) Serviced
-------- ---- ----------- ------------- -------------- ---------------- ---------------- --------
12 6 CWCapital 75 Broad $ 108,000,000 0.5 2.5 X
00 00 XXXxxxxxx Xxxxx XxXx $ 24,919,695 0.5 2.5 X
00 00 XXXxxxxxx XXX - Xxxxxxxxxx $ 14,568,219 0.5 2.5 X
00 00 XXXxxxxxx Xxxxx xx Xxx $ 13,931,292 0.5 2.5 Y
52 33 CWCapital Buckeystown Pike Office Center $ 9,600,000 0.5 2.5 Y
00 00 XXXxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx $ 8,500,000 0.5 2.5 Y
61 42 CWCapital The Village at Noble Farms $ 7,000,000 0.5 2.5 Y
70 51 CWCapital Memorial Clinic $ 5,987,870 0.5 2.5 Y
71 00 XXXxxxxxx Xxxxxxxxx Shops $ 5,985,732 0.5 2.5 Y
78 00 XXXxxxxxx Xxxxxx Xxxxxx Shopping Center $ 4,983,550 0.5 2.5 Y
80 00 XXXxxxxxx Xxxxx Xxxx Xxxxxxx Xxxxx $ 4,948,440 0.5 2.5 X
00 00 XXXxxxxxx XXX - Xxxxx Xxxxx $ 4,824,000 0.5 2.5 Y
93 67 CWCapital Orchard Ridge Apartments $ 4,480,000 0.5 2.5 X
000 00 XXXxxxxxx Xxxxxxx Shopping Center $ 3,990,904 0.5 2.5 X
000 00 XXXxxxxxx Xxxxx at Riata $ 2,720,000 0.5 2.5 X
00 00 XXXxxxxxx XXX - Xxxxxxxxxxx $ 1,440,000 0.5 2.5 Y
11 5 MSMC 0000 X Xxxxxx $ 115,000,000 0.5 2.5 N
13 7 MSMC 1370 Avenue of the Americas A1 $ 82,500,000 0.5 3.5 N
14 8 MSMC Camino Real Marketplace $ 76,860,000 0.5 2.5 N
13 7 MSMC 1370 Avenue of the Americas A2 $ 67,500,000 0.5 2.5 N
18 12 MSMC Pacific Coast Plaza $ 52,000,000 0.5 2.5 N
16 10 MSMC Towne East Square Mall - Note 1 $ 46,978,780 0.5 2.5 N
29 00 XXXX Xxxxx Xxxxxxx Shopping Center $ 36,769,278 0.5 2.5 N
35 16 MSMC Rodin Place $ 32,826,768 0.5 2.5 N
36 17 MSMC Sharpstown Mall $ 31,939,622 0.5 2.5 N
17 11 MSMC Towne East Square Mall - Note 2 $ 23,050,469 0.5 2.5 X
00 00 XXXX 00 Xxxxxx Xxxxxx $ 22,924,187 0.5 2.5 N
30 15 MSMC Pacific Medical Portfolio 4 -
XxXxxxx Building $ 20,104,000 0.5 2.5 X
00 00 XXXX Xxxxxxxxx Xxxx $ 16,447,643 0.5 2.5 N
43 00 XXXX Xxxxxxxx Xxxxxx Xxxx $ 14,960,753 0.5 2.5 N
44 25 MSMC Talbots - Walnut Creek $ 14,200,000 0.5 2.5 N
46 27 MSMC Echelon Village Plaza $ 13,067,720 0.5 2.5 N
47 28 MSMC 0000 Xxxxxxxx Xxxxxxxxx $ 12,500,000 0.5 2.5 N
48 29 MSMC Corporate Center $ 12,080,000 0.5 2.5 N
MSCI 2005-HQ5
Loan Loan Mortgage Cut-Off Master Servicing Excess Servicing Sub-
Pool No. No. Loan Seller Property Name Date Balance Fee (bps) Fee (bps) Serviced
-------- ---- ----------- ------------- -------------- ---------------- ---------------- --------
49 30 MSMC Borders Books - Pasadena $ 11,700,000 0.5 2.5 X
00 00 XXXX Xxxxx - Xxxxxx $ 10,373,950 0.5 2.5 N
51 32 MSMC Rainbow Design Center $ 10,280,000 0.5 2.5 N
53 34 MSMC Flamingo Business Centre $ 9,280,000 0.5 2.5 N
54 35 MSMC 111 Lomas Office Building $ 8,600,000 0.5 2.5 Y
56 37 MSMC Summit Medical Center $ 8,272,124 0.5 2.5 N
58 39 MSMC The Shoppes at Xxxx Xxxxx $ 7,982,365 0.5 2.5 X
00 00 XXXX XXX Xxxxxxxxx - Xxxxxxxx Xxxx $ 7,859,614 0.5 2.5 N
59 40 MSMC Storage Etc. - Xxxxxxx $ 7,852,500 0.5 2.5 N
20 00 XXXX XXX Xxxxxxxxx - Xxxxxxx Xxxx $ 7,785,902 0.5 2.5 N
60 41 MSMC Parkpoint Business Center $ 7,482,492 0.5 2.5 N
62 43 MSMC Xxxxxxxxx Plaza $ 6,750,000 0.5 2.5 Y
63 44 MSMC 00 Xxxxx Xxxx $ 6,734,524 0.5 2.5 N
64 45 MSMC Park N Go $ 6,487,591 0.5 2.5 N
65 46 MSMC Xxxxxxxx Building $ 6,450,334 0.5 2.5 Y
66 47 MSMC Princess Xxxx Marketplace $ 6,357,640 0.5 2.5 N
67 48 MSMC Hilltop Plaza $ 6,272,855 0.5 2.5 N
68 49 MSMC Bridgeport Shopping Center $ 6,122,264 0.5 2.5 X
00 00 XXXX Xxxxx - Xxxxxxx $ 6,100,000 0.5 2.5 N
72 00 XXXX Xxxxxx Xxxxxxxx $ 5,879,394 0.5 2.5 N
21 13 MSMC AVG Portfolio - Dallas $ 5,809,280 0.5 2.5 N
74 55 MSMC 000-000 Xxxxxxx Xxxxxx $ 5,782,341 0.5 2.5 N
75 56 MSMC Xxxxxx Home Furnishing $ 5,632,129 0.5 2.5 N
76 57 MSMC 0000-0000 Xxxxx Xxxxxx $ 5,282,157 0.5 2.5 N
77 58 MSMC Stonegate Shopping Center $ 5,040,000 0.5 2.5 N
22 13 MSMC AVG Portfolio - Oceanside $ 4,989,146 0.5 2.5 N
79 60 MSMC 0000 Xxxxxx Xxxxxx $ 4,967,318 0.5 2.5 N
31 15 MSMC Pacific Medical Portfolio 4 -
Xxxxxx Medical Cente $ 4,960,000 0.5 2.5 N
81 62 MSMC 000 Xxxxxxxxxxxx Xxxx $ 4,938,330 0.5 2.5 N
82 63 MSMC 0000 Xxxxxxxxxx Xxxx $ 4,779,010 0.5 2.5 N
83 64 MSMC Xxxxxxx - Igloo $ 4,579,847 0.5 2.5 N
23 13 MSMC AVG Portfolio - Omaha (118th Street) $ 4,579,079 0.5 2.5 N
92 66 MSMC 605 Self Storage $ 4,485,607 0.5 2.5 N
94 68 MSMC SoHo South Office/Flex $ 4,466,790 0.5 2.5 N
24 13 MSMC AVG Portfolio - Xxxxxxx $ 4,374,046 0.5 2.5 N
95 69 MSMC Appalachian Resort $ 4,365,000 0.5 2.5 N
96 70 MSMC Xxxxx Xxxx Plaza $ 4,236,560 0.5 2.5 Y
MSCI 2005-HQ5
Loan Loan Mortgage Cut-Off Master Servicing Excess Servicing Sub-
Pool No. No. Loan Seller Property Name Date Balance Fee (bps) Fee (bps) Serviced
-------- ---- ----------- ------------- -------------- ---------------- ---------------- --------
97 71 MSMC Winchester Pavilion $ 4,235,646 0.5 2.5 N
98 72 MSMC University Park Shopping Center $ 4,224,918 0.5 2.5 N
32 15 MSMC Xxxxxxx Xxxxxxx Xxxxxxxxx 0 -
Xxxxx Xxxxxxxxx $ 4,054,500 0.5 2.5 N
25 13 MSMC AVG Portfolio - Independence $ 4,032,324 0.5 2.5 N
26 13 MSMC AVG Portfolio - Shawnee $ 4,032,324 0.5 2.5 N
99 73 MSMC Emerson Manor $ 4,000,000 0.5 2.5 N
101 75 MSMC Storage King $ 3,987,012 0.5 2.5 N
102 76 MSMC Corporate Center at Lake Osprey $ 3,922,863 0.5 2.5 N
103 77 MSMC Newport News Retail Center $ 3,895,891 0.5 2.5 N
27 13 MSMC AVG Portfolio - Omaha (147th Street) $ 3,758,946 0.5 2.5 N
104 78 MSMC Pennhurst Building $ 3,688,434 0.5 2.5 N
105 79 MSMC 00 Xxxx 000xx Xxxxxx $ 3,428,402 0.5 2.5 X
00 00 XXXX XXX Xxxxxxxxx - Xxxxxxxx Xxxx $ 3,212,190 0.5 2.5 N
33 15 MSMC Xxxxxxx Xxxxxxx Xxxxxxxxx 0 -
Xxxxx Xxxxxxxx $ 3,204,500 0.5 2.5 N
108 82 MSMC Cool Springs Retail Center $ 2,712,836 0.5 2.5 N
109 83 MSMC Wachovia Value Warehouse $ 2,693,779 0.5 2.5 N
110 84 MSMC New Forest Shopping Center $ 2,586,326 0.5 2.5 N
34 15 MSMC Pacific Medical Portfolio 4 -
Xxxxxx Xxxxxxx Bldg $ 2,557,000 0.5 2.5 N
111 85 MSMC St. Lukes Surgery Center $ 2,480,413 0.5 2.5 N
113 87 MSMC 000-00 Xxxxxxx Xxxxxx $ 1,990,828 0.5 2.5 N
115 89 MSMC Riverside Apartments $ 1,495,511 0.5 2.5 N
10 4 MSMC Houston Center $ 119,705,000 0.5 0.5 Y
15 9 MSMC 000 Xxxxxx Xxxxxx $ 75,000,000 0.5 0.5 Y
1 1 MSMC Xxxxx REF Portfolio: Independence
Square Two $ 43,833,276 0.5 0.5 Y
2 1 MSMC Xxxxx REF Portfolio: Independence
Square One $ 23,946,724 0.5 0.5 Y
3 2 MSMC Xxxxx REF Portfolio: Keybank Building $ 17,690,000 0.5 0.5 Y
4 2 MSMC Xxxxx REF Portfolio: Bridgewater
Crossing II $ 16,654,286 0.5 0.5 Y
5 2 MSMC Xxxxx REF Portfolio: Citicorp Building $ 12,138,571 0.5 0.5 Y
Xxxxx REF Portfolio: Caterpillar
6 2 MSMC Building $ 11,102,857 0.5 0.5 Y
7 2 MSMC Xxxxx REF Portfolio: State Street
Building $ 8,368,571 0.5 0.5 Y
57 38 MSMC 8500 Valcour $ 8,033,363 0.5 2.5 Y
8 2 MSMC Xxxxx REF Portfolio: Harcourt Building $ 6,835,714 0.5 0.5 Y
73 54 MSMC Pavilion Shopping Center $ 5,861,122 0.5 2.5 Y
9 3 MSMC Xxxxx REF Portfolio: Continental
Casualty $ 4,430,000 0.5 0.5 Y
106 80 MSMC 000 X. Xxxxxxxxxx Xx. $ 3,143,056 0.5 2.5 Y
112 86 MSMC Van Roy Building $ 2,368,301 0.5 2.5 Y
114 00 XXXX Xxxxxxxx Xxxxx $ 1,888,992 0.5 2.5 Y
MSCI 2005-HQ5
Loan Loan Mortgage Cut-Off Master Servicing Excess Servicing Sub-
Pool No. No. Loan Seller Property Name Date Balance Fee (bps) Fee (bps) Serviced
-------- ---- ----------- ------------- -------------- ---------------- ---------------- --------
84 65 MSMC Turton Portfolio - 0000 Xxxxxxx
Xxxx Xx. $ 1,217,823 0.5 2.5 Y
85 65 MSMC Turton Portfolio - 0000 00xx Xxxxxx $ 733,688 0.5 2.5 Y
86 65 MSMC Turton Portfolio - 0000 Xxxxxx Xxxxxx $ 668,804 0.5 2.5 Y
87 65 MSMC Turton Portfolio - 0000 00xx Xxxxxx X $ 419,250 0.5 2.5 Y
88 65 MSMC Turton Portfolio - 000 00xx Xxx. $ 404,844 0.5 2.5 Y
89 65 MSMC Turton Portfolio - 000 Xxxxxxx 00 Xxxxx $ 369,340 0.5 2.5 Y
90 65 MSMC Turton Portfolio - 000 Xxxxx Xxxxx
Xxxxxx $ 363,782 0.5 2.5 Y
91 65 MSMC Turton Portfolio - 0000 Xxxxxxx
Xxxx Xx. $ 339,393 0.5 2.5 Y
--------------
Total $1,591,190,515
==============
MSCI 2005-HQ5
SECTION 2.3 (A) LIST (CROSSED LOANS)
------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE
------------------------------------------------------------------------------------
1 MSMC Xxxxx REF Portfolio: Independence Square Two $43,833,276
2 MSMC Xxxxx REF Portfolio: Independence Square One $23,946,724
3 MSMC Xxxxx REF Portfolio: Keybank Building $17,690,000
4 MSMC Xxxxx REF Portfolio: Bridgewater Crossing II $16,654,286
5 MSMC Xxxxx REF Portfolio: Citicorp Building $12,138,571
6 MSMC Xxxxx REF Portfolio: Caterpillar Building $11,102,857
7 MSMC Xxxxx REF Portfolio: State Street Building $ 8,368,571
8 MSMC Xxxxx REF Portfolio: Harcourt Building $ 6,835,714
9 MSMC Xxxxx REF Portfolio: Continental Casualty $ 4,430,000
00 XXXX Xxxxx Xxxx Xxxxxx Xxxx - Note 1 $46,978,780
00 XXXX Xxxxx Xxxx Xxxxxx Xxxx - Note 2 $23,050,469
39 CWCapital GPT - Charleston $14,568,219
00 XXXxxxxxx XXX - Xxxxx Xxxxx $ 4,824,000
00 XXXxxxxxx XXX - Xxxxxxxxxxx $ 1,440,000
MSCI 2005-HQ5
LOAN SCHEDULE
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE ORIGINAL TERM
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE NOTE DATE TO MATURITY
--------------------------------------------------------------------------------------------------------------------------
1 MSMC Xxxxx REF Portfolio: Independence Square Two $ 43,833,276 05/21/2004 120
2 MSMC Xxxxx REF Portfolio: Independence Square One $ 23,946,724 05/21/2004 120
3 MSMC Xxxxx REF Portfolio: Keybank Building $ 17,690,000 05/21/2004 120
4 MSMC Xxxxx REF Portfolio: Bridgewater Crossing II $ 16,654,286 05/21/2004 120
5 MSMC Xxxxx REF Portfolio: Citicorp Building $ 12,138,571 05/21/2004 120
6 MSMC Xxxxx REF Portfolio: Caterpillar Building $ 11,102,857 05/21/2004 120
7 MSMC Xxxxx REF Portfolio: State Street Building $ 8,368,571 05/21/2004 120
8 MSMC Xxxxx REF Portfolio: Harcourt Building $ 6,835,714 05/21/2004 120
9 MSMC Xxxxx REF Portfolio: Continental Casualty $ 4,430,000 05/21/2004 120
10 MSMC Houston Center $ 119,705,000 11/10/2004 83
11 MSMC 0000 X Xxxxxx $ 115,000,000 11/29/2004 120
13 MSMC 1370 Avenue of the Americas $ 82,500,000 11/09/2004 120
14 MSMC Camino Real Marketplace $ 76,860,000 12/14/2004 120
15 MSMC 000 Xxxxxx Xxxxxx $ 75,000,000 03/04/2004 120
16 MSMC Towne East Square Mall - Note 1 $ 46,978,780 06/03/1994 54
17 MSMC Towne East Square Mall - Note 2 $ 23,050,469 12/03/1998 120
00 XXXX Xxxxxxx Xxxxx Xxxxx $ 52,000,000 02/23/2005 120
00 XXXX XXX Xxxxxxxxx - Xxxxxxxx Xxxx $ 7,859,614 02/23/2005 120
00 XXXX XXX Xxxxxxxxx - Xxxxxxx Xxxx $ 7,785,902 02/23/2005 120
21 MSMC AVG Portfolio - Dallas $ 5,809,280 02/23/2005 120
22 MSMC AVG Portfolio - Oceanside $ 4,989,146 02/23/2005 120
23 MSMC AVG Portfolio - Omaha (118th Street) $ 4,579,079 02/23/2005 120
24 MSMC AVG Portfolio - Xxxxxxx $ 4,374,046 02/23/2005 120
25 MSMC AVG Portfolio - Independence $ 4,032,324 02/23/2005 120
26 MSMC AVG Portfolio - Shawnee $ 4,032,324 02/23/2005 120
27 MSMC AVG Portfolio - Omaha (147th Street) $ 3,758,946 02/23/2005 120
00 XXXX XXX Xxxxxxxxx - Xxxxxxxx Xxxx $ 3,212,190 02/23/2005 120
00 XXXX Xxxxx Xxxxxxx Shopping Center $ 36,769,278 08/23/2004 120
30 MSMC Pacific Medical Portfolio 4 - XxXxxxx Building $ 20,104,000 02/17/2004 120
31 MSMC Pacific Medical Portfolio 4 - Xxxxxx Medical Center $ 4,960,000 02/17/2004 120
32 MSMC Xxxxxxx Xxxxxxx Xxxxxxxxx 0 - Xxxxx Xxxxxxxxx $ 4,054,500 02/17/2004 120
33 MSMC Xxxxxxx Xxxxxxx Xxxxxxxxx 0 - Xxxxx Xxxxxxxx $ 3,204,500 02/17/2004 120
34 MSMC Pacific Medical Portfolio 4 - Xxxxxx Xxxxxxx Bldg $ 2,557,000 02/17/2004 120
35 MSMC Rodin Place $ 32,826,768 09/28/2004 120
36 MSMC Sharpstown Mall $ 31,939,622 01/19/2005 60
38 XXXX 00 Xxxxxx Xxxxxx $ 22,924,187 11/16/2004 000
00 XXXX Xxxxxxxxx Xxxx $ 16,447,643 12/28/2004 120
00 XXXX Xxxxxxxx Xxxxxx Xxxx $ 14,960,753 12/21/2004 120
44 MSMC Talbots - Walnut Creek $ 14,200,000 12/15/2004 120
46 MSMC Echelon Village Plaza $ 13,067,720 12/22/2004 120
47 MSMC 0000 Xxxxxxxx Xxxxxxxxx $ 12,500,000 03/02/2005 120
48 MSMC Corporate Center $ 12,080,000 02/15/2005 84
49 MSMC Borders Books - Pasadena $ 11,700,000 12/08/2004 120
50 MSMC Lowes - Topeka $ 10,373,950 12/30/2004 84
51 MSMC Rainbow Design Center $ 10,280,000 01/26/2005 120
53 MSMC Flamingo Business Centre $ 9,280,000 11/16/2004 120
54 XXXX 000 Xxxxx Xxxxxx Xxxxxxxx $ 8,600,000 12/22/2004 120
56 MSMC Summit Medical Center $ 8,272,124 11/01/2004 120
57 MSMC 8500 Valcour $ 8,033,363 09/22/2004 120
58 MSMC The Shoppes at Xxxx Xxxxx $ 7,982,365 12/09/2004 120
--------------------------------------------------------------------------------------------
MORTGAGE REMAINING TERM ORIGINAL REMAINING MORTGAGE MONTHLY
LOAN NO. TO MATURITY AMORT. TERM AMORT. TERM RATE PAYMENT (P&I) SEASONING
--------------------------------------------------------------------------------------------
1 111 IO IO 4.840% NAP 9
2 111 IO IO 4.840% NAP 9
3 111 IO IO 4.840% NAP 9
4 111 IO IO 4.840% NAP 9
5 111 IO IO 4.840% NAP 9
6 111 IO IO 4.840% NAP 9
7 111 IO IO 4.840% NAP 9
8 111 IO IO 4.840% NAP 9
9 111 IO IO 4.840% NAP 9
10 80 IO IO 5.030% NAP 3
11 117 360 360 5.970% $687,267 3
13 117 IO IO 5.526% NAP 3
14 118 360 360 5.180% $421,098 2
15 109 360 360 5.497% $423,873 11
16 46 214 206 7.000% $392,547 8
17 46 360 286 6.810% $163,148 74
18 120 360 360 5.260% $287,468 0
19 120 300 300 5.510% $ 48,312 0
20 120 300 300 5.510% $ 47,859 0
21 120 300 300 5.510% $ 35,709 0
22 120 300 300 5.510% $ 30,668 0
23 120 300 300 5.510% $ 28,147 0
24 120 300 300 5.510% $ 26,887 0
25 120 300 300 5.510% $ 24,786 0
26 120 300 300 5.510% $ 24,786 0
27 120 300 300 5.510% $ 23,106 0
28 120 300 300 5.510% $ 19,745 0
29 114 360 354 5.700% $214,748 6
30 108 324 324 5.790% $122,823 12
31 108 324 324 5.790% $ 30,303 12
32 108 324 324 5.790% $ 24,771 12
33 108 324 324 5.790% $ 19,578 12
34 108 324 324 5.790% $ 15,622 12
35 115 360 355 5.610% $189,654 5
36 59 300 299 5.370% $194,031 1
38 117 360 357 5.500% $130,591 3
42 118 300 298 5.730% $103,603 2
43 118 346 344 5.040% $ 82,256 2
44 118 360 360 5.600% $ 81,519 2
46 118 360 358 5.200% $ 71,934 2
47 120 360 360 5.530% $ 71,209 0
48 84 360 360 5.180% $ 66,183 0
49 117 360 360 5.600% $ 67,167 3
50 82 360 358 5.100% $ 56,467 2
51 119 360 360 5.500% $ 58,369 1
53 117 360 360 5.300% $ 51,532 3
54 118 300 300 5.650% $ 53,585 2
56 117 360 357 5.400% $ 46,607 3
57 115 360 355 5.700% $ 46,867 5
58 118 360 358 5.880% $ 47,349 2
--------------------------------------------------------------------------------------------------------------------
PREPAYMENT CODE
MORTGAGE ----------------------------------------------------------------------------------------- ADMINISTRATIVE
LOAN NO. LO DEF DEF/YM1.00 YM5.00 YM4.50 YM4.00 YM3.50 YM3.00 YM2.00 YM1.50 YM1.00 OPEN COST RATE
--------------------------------------------------------------------------------------------------------------------
1 33 83 4 3.15
2 33 83 4 3.15
3 33 83 4 3.15
4 33 83 4 3.15
5 33 83 4 3.15
6 33 83 4 3.15
7 33 83 4 3.15
8 33 83 4 3.15
9 33 83 4 3.15
10 27 52 4 3.15
11 27 89 4 3.15
13 27 89 4 4.15
14 26 90 4 3.15
15 35 81 4 2.15
16 0 5 12 12 12 7 6 3.15
17 35 12 12 54 7 3.15
18 24 92 4 3.15
19 24 92 4 3.15
20 24 92 4 3.15
21 24 92 4 3.15
22 24 92 4 3.15
23 24 92 4 3.15
24 24 92 4 3.15
25 24 92 4 3.15
26 24 92 4 3.15
27 24 92 4 3.15
28 24 92 4 3.15
29 30 89 1 3.15
30 36 80 4 3.15
31 36 80 4 3.15
32 36 80 4 3.15
33 36 80 4 3.15
34 36 80 4 3.15
35 29 87 4 3.15
36 25 31 4 3.15
38 27 89 4 3.15
42 26 87 7 3.15
43 26 90 4 3.15
44 26 93 1 3.15
46 26 90 4 3.15
47 23 93 4 3.15
48 24 56 4 3.15
49 27 92 1 3.15
50 26 54 4 3.15
51 25 91 4 3.15
53 27 89 4 3.15
54 26 90 4 8.15
56 27 89 4 3.15
57 29 87 4 13.15
58 26 90 4 3.15
------------------------------------------------------------------------------------------------
MORTGAGE MASTER SERVICER PRIMARY SERVICER MASTER SERVICER PRIMARY SERVICER DEAL TRUSTEE
LOAN NO. FEE RATE FEE RATE EXCESS FEE RATE EXCESS FEE RATE FEE FEE RATE
------------------------------------------------------------------------------------------------
1 1.00 2.00 0.00 0.00 3.00 0.15
2 1.00 2.00 0.00 0.00 3.00 0.15
3 1.00 2.00 0.00 0.00 3.00 0.15
4 1.00 2.00 0.00 0.00 3.00 0.15
5 1.00 2.00 0.00 0.00 3.00 0.15
6 1.00 2.00 0.00 0.00 3.00 0.15
7 1.00 2.00 0.00 0.00 3.00 0.15
8 1.00 2.00 0.00 0.00 3.00 0.15
9 1.00 2.00 0.00 0.00 3.00 0.15
10 1.00 2.00 0.00 0.00 3.00 0.15
11 3.00 0.00 0.00 0.00 3.00 0.15
13 1.00 3.00 0.00 0.00 4.00 0.15
14 3.00 0.00 0.00 0.00 3.00 0.15
15 1.00 1.00 0.00 0.00 2.00 0.15
16 1.00 2.00 0.00 0.00 3.00 0.15
17 1.00 2.00 0.00 0.00 3.00 0.15
18 3.00 0.00 0.00 0.00 3.00 0.15
19 3.00 0.00 0.00 0.00 3.00 0.15
20 3.00 0.00 0.00 0.00 3.00 0.15
21 3.00 0.00 0.00 0.00 3.00 0.15
22 3.00 0.00 0.00 0.00 3.00 0.15
23 3.00 0.00 0.00 0.00 3.00 0.15
24 3.00 0.00 0.00 0.00 3.00 0.15
25 3.00 0.00 0.00 0.00 3.00 0.15
26 3.00 0.00 0.00 0.00 3.00 0.15
27 3.00 0.00 0.00 0.00 3.00 0.15
28 3.00 0.00 0.00 0.00 3.00 0.15
29 3.00 0.00 0.00 0.00 3.00 0.15
30 3.00 0.00 0.00 0.00 3.00 0.15
31 3.00 0.00 0.00 0.00 3.00 0.15
32 3.00 0.00 0.00 0.00 3.00 0.15
33 3.00 0.00 0.00 0.00 3.00 0.15
34 3.00 0.00 0.00 0.00 3.00 0.15
35 3.00 0.00 0.00 0.00 3.00 0.15
36 3.00 0.00 0.00 0.00 3.00 0.15
38 3.00 0.00 0.00 0.00 3.00 0.15
42 3.00 0.00 0.00 0.00 3.00 0.15
43 3.00 0.00 0.00 0.00 3.00 0.15
44 3.00 0.00 0.00 0.00 3.00 0.15
46 3.00 0.00 0.00 0.00 3.00 0.15
47 3.00 0.00 0.00 0.00 3.00 0.15
48 3.00 0.00 0.00 0.00 3.00 0.15
49 3.00 0.00 0.00 0.00 3.00 0.15
50 3.00 0.00 0.00 0.00 3.00 0.15
51 3.00 0.00 0.00 0.00 3.00 0.15
53 3.00 0.00 0.00 0.00 3.00 0.15
54 3.00 5.00 0.00 0.00 8.00 0.15
56 3.00 0.00 0.00 0.00 3.00 0.15
57 3.00 10.00 0.00 0.00 13.00 0.15
58 3.00 0.00 0.00 0.00 3.00 0.15
--------------------------------------------------------------------------------------------------------------------------
MORTGAGE MORTGAGE CUT-OFF DATE ORIGINAL TERM
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE NOTE DATE TO MATURITY
--------------------------------------------------------------------------------------------------------------------------
59 MSMC Storage Etc. - Xxxxxxx $ 7,852,500 11/09/2004 120
60 MSMC Parkpoint Business Center $ 7,482,492 12/08/2004 120
00 XXXX Xxxxxxxxx Xxxxx $ 6,750,000 03/08/2005 120
63 XXXX 00 Xxxxx Xxxx $ 6,734,524 12/15/2004 000
00 XXXX Xxxx X Go $ 6,487,591 01/27/2005 60
65 MSMC Xxxxxxxx Building $ 6,450,334 09/30/2004 120
66 MSMC Princess Xxxx Marketplace $ 6,357,640 07/13/2004 120
67 MSMC Hilltop Plaza $ 6,272,855 06/24/2004 120
68 MSMC Bridgeport Shopping Center $ 6,122,264 08/25/2004 120
69 MSMC Lowes - Midland $ 6,100,000 02/10/2005 84
00 XXXX Xxxxxx Xxxxxxxx $ 5,879,394 11/23/2004 120
73 MSMC Pavilion Shopping Center $ 5,861,122 11/05/2004 120
74 MSMC 000-000 Xxxxxxx Xxxxxx $ 5,782,341 11/22/2004 60
75 MSMC Xxxxxx Home Furnishings $ 5,632,129 04/26/2004 84
76 MSMC 0000-0000 Xxxxx Xxxxxx $ 5,282,157 02/12/2004 120
77 MSMC Stonegate Shopping Center $ 5,040,000 12/08/2004 120
79 MSMC 0000 Xxxxxx Xxxxxx $ 4,967,318 07/15/2004 120
81 MSMC 000 Xxxxxxxxxxxx Xxxx $ 4,938,330 12/29/2004 120
82 MSMC 0000 Xxxxxxxxxx Xxxx $ 4,779,010 10/13/2004 120
83 MSMC Xxxxxxx - Igloo $ 4,579,847 10/25/2004 122
84 MSMC Turton Portfolio - 0000 Xxxxxxx Xxxx Xx. $ 1,217,823 01/11/2005 120
85 MSMC Turton Portfolio - 0000 00xx Xxxxxx $ 733,688 01/11/2005 120
86 MSMC Turton Portfolio - 0000 Xxxxxx Xxxxxx $ 668,804 01/11/2005 120
87 MSMC Turton Portfolio - 0000 00xx Xxxxxx X $ 419,250 01/11/2005 120
88 MSMC Turton Portfolio - 000 00xx Xxx. $ 404,844 01/11/2005 120
89 MSMC Turton Portfolio - 000 Xxxxxxx 00 Xxxxx $ 369,340 01/11/2005 120
90 MSMC Turton Portfolio - 000 Xxxxx Xxxxx Xxxxxx $ 363,782 01/11/2005 120
91 MSMC Turton Portfolio - 0000 Xxxxxxx Xxxx Xx. $ 339,393 01/11/2005 120
92 MSMC 605 Self Storage $ 4,485,607 12/01/2004 120
94 MSMC SoHo South Office/Flex $ 4,466,790 09/29/2004 120
00 XXXX Xxxxxxxxxxx Xxxxxx $ 4,365,000 12/21/2004 59
00 XXXX Xxxxx Xxxx Xxxxx $ 4,236,560 12/01/2004 120
97 MSMC Winchester Pavilion $ 4,235,646 11/19/2004 120
98 MSMC University Park Shopping Center $ 4,224,918 10/15/2004 120
99 MSMC Emerson Manor $ 4,000,000 07/07/2004 120
101 MSMC Storage King $ 3,987,012 11/22/2004 120
102 MSMC Corporate Center at Lake Osprey $ 3,922,863 07/12/2004 120
103 MSMC Newport News Retail Center $ 3,895,891 08/05/2004 120
104 MSMC Pennhurst Building $ 3,688,434 12/29/2004 120
105 MSMC 00 Xxxx 000xx Xxxxxx $ 3,428,402 08/09/2004 120
106 MSMC 000 X. Xxxxxxxxxx Xx. $ 3,143,056 12/01/2004 120
108 MSMC Cool Springs Retail Center $ 2,712,836 10/19/2004 120
109 MSMC Wachovia Value Warehouse $ 2,693,779 12/20/2004 120
110 MSMC New Forest Shopping Center $ 2,586,326 01/13/2005 120
111 MSMC St. Lukes Surgery Center $ 2,480,413 10/08/2004 120
112 MSMC Xxx Xxx Building $ 2,368,301 12/22/2004 120
113 MSMC 000-00 Xxxxxxx Xxxxxx $ 1,990,828 11/15/2004 120
000 XXXX Xxxxxxxx Xxxxx $ 1,888,992 08/30/2004 120
115 MSMC Riverside Apartments $ 1,495,511 11/15/2004 120
TOTALS AND WEIGHTED AVERAGES: $1,523,690,515 109
--------------------------------------------------------------------------------------------
MORTGAGE REMAINING TERM ORIGINAL REMAINING MORTGAGE MONTHLY
LOAN NO. TO MATURITY AMORT. TERM AMORT. TERM RATE PAYMENT (P&I) SEASONING
--------------------------------------------------------------------------------------------
59 117 360 360 5.500% $ 44,586 3
60 118 360 358 5.530% $ 42,725 2
62 120 300 300 5.960% $ 43,325 0
63 118 360 358 5.640% $ 38,921 2
64 59 300 299 5.250% $ 38,951 1
65 115 300 295 5.550% $ 40,110 5
66 113 360 353 6.080% $ 38,701 7
67 112 360 352 6.080% $ 38,217 8
68 114 360 354 5.790% $ 36,105 6
69 84 360 360 5.130% $ 33,232 0
72 117 360 357 5.190% $ 32,361 3
73 117 360 357 5.640% $ 33,904 3
74 57 360 357 5.920% $ 34,476 3
75 74 360 350 4.900% $ 30,251 10
76 108 360 348 5.500% $ 30,377 12
77 118 360 360 5.510% $ 28,648 2
79 113 360 353 6.140% $ 30,429 7
81 118 360 358 5.470% $ 28,012 2
82 116 360 356 5.540% $ 27,374 4
83 117 360 355 5.450% $ 26,466 5
84 119 300 299 5.950% $ 7,823 1
85 119 300 299 5.950% $ 4,713 1
86 119 300 299 5.950% $ 4,296 1
87 119 300 299 5.950% $ 2,693 1
88 119 300 299 5.950% $ 2,601 1
89 119 300 299 5.950% $ 2,373 1
90 119 300 299 5.950% $ 2,337 1
91 119 300 299 5.950% $ 2,180 1
92 117 360 357 5.660% $ 26,004 3
94 115 300 295 5.770% $ 28,364 5
95 56 348 348 5.360% $ 24,744 3
96 117 360 357 5.720% $ 24,721 3
97 117 360 357 5.370% $ 23,786 3
98 116 300 296 5.900% $ 27,124 4
99 113 360 360 5.680% $ 23,165 7
101 117 360 357 5.580% $ 22,913 3
102 113 360 353 5.900% $ 23,429 7
103 114 360 354 5.770% $ 22,926 6
104 118 300 298 5.840% $ 23,479 2
105 114 360 354 5.680% $ 19,980 6
106 118 360 358 5.880% $ 18,644 2
108 116 360 356 5.430% $ 15,353 4
109 118 360 358 5.610% $ 15,517 2
110 119 360 359 5.380% $ 14,511 1
111 115 300 295 5.390% $ 15,188 5
112 118 324 322 5.580% $ 14,203 2
113 117 300 297 5.650% $ 12,462 3
114 114 360 354 6.070% $ 11,477 6
115 117 360 357 6.010% $ 9,003 3
104 239 237 5.532% 5
--------------------------------------------------------------------------------------------------------------------
PREPAYMENT CODE
MORTGAGE ----------------------------------------------------------------------------------------- ADMINISTRATIVE
LOAN NO. LO DEF DEF/YM1.00 YM5.00 YM4.50 YM4.00 YM3.50 YM3.00 YM2.00 YM1.50 YM1.00 OPEN COST RATE
--------------------------------------------------------------------------------------------------------------------
59 59 57 4 3.15
60 26 90 4 3.15
62 23 93 4 15.15
63 26 90 4 3.15
64 25 31 4 3.15
65 29 87 4 8.15
66 31 82 7 3.15
67 32 84 4 3.15
68 30 86 4 3.15
69 24 56 4 3.15
72 27 89 4 3.15
73 27 89 4 13.15
74 27 29 4 3.15
75 34 46 4 3.15
76 36 80 4 3.15
77 26 90 4 3.15
79 31 85 4 3.15
81 26 90 4 3.15
82 28 88 4 3.15
83 29 86 7 3.15
84 25 91 4 13.15
85 25 91 4 13.15
86 25 91 4 13.15
87 25 91 4 13.15
88 25 91 4 13.15
89 25 91 4 13.15
90 25 91 4 13.15
91 25 91 4 13.15
92 27 89 4 3.15
94 29 87 4 3.15
95 27 28 4 3.15
96 27 89 4 13.15
97 27 89 4 3.15
98 28 88 4 3.15
99 31 85 4 3.15
101 27 89 4 3.15
102 31 85 4 3.15
103 30 86 4 3.15
104 26 90 4 3.15
105 30 86 4 3.15
106 26 90 4 13.15
108 28 88 4 3.15
109 26 90 4 3.15
110 25 91 4 3.15
111 29 87 4 3.15
112 26 87 7 8.15
113 27 89 4 3.15
114 30 86 4 13.15
115 27 89 4 3.15
------------------------------------------------------------------------------------------------
MORTGAGE MASTER SERVICER PRIMARY SERVICER MASTER SERVICER PRIMARY SERVICER DEAL TRUSTEE
LOAN NO. FEE RATE FEE RATE EXCESS FEE RATE EXCESS FEE RATE FEE FEE RATE
------------------------------------------------------------------------------------------------
59 3.00 0.00 0.00 0.00 3.00 0.15
60 3.00 0.00 0.00 0.00 3.00 0.15
62 3.00 12.00 0.00 0.00 15.00 0.15
63 3.00 0.00 0.00 0.00 3.00 0.15
64 3.00 0.00 0.00 0.00 3.00 0.15
65 3.00 5.00 0.00 0.00 8.00 0.15
66 3.00 0.00 0.00 0.00 3.00 0.15
67 3.00 0.00 0.00 0.00 3.00 0.15
68 3.00 0.00 0.00 0.00 3.00 0.15
69 3.00 0.00 0.00 0.00 3.00 0.15
72 3.00 0.00 0.00 0.00 3.00 0.15
73 3.00 10.00 0.00 0.00 13.00 0.15
74 3.00 0.00 0.00 0.00 3.00 0.15
75 3.00 0.00 0.00 0.00 3.00 0.15
76 3.00 0.00 0.00 0.00 3.00 0.15
77 3.00 0.00 0.00 0.00 3.00 0.15
79 3.00 0.00 0.00 0.00 3.00 0.15
81 3.00 0.00 0.00 0.00 3.00 0.15
82 3.00 0.00 0.00 0.00 3.00 0.15
83 3.00 0.00 0.00 0.00 3.00 0.15
84 3.00 10.00 0.00 0.00 13.00 0.15
85 3.00 10.00 0.00 0.00 13.00 0.15
86 3.00 10.00 0.00 0.00 13.00 0.15
87 3.00 10.00 0.00 0.00 13.00 0.15
88 3.00 10.00 0.00 0.00 13.00 0.15
89 3.00 10.00 0.00 0.00 13.00 0.15
90 3.00 10.00 0.00 0.00 13.00 0.15
91 3.00 10.00 0.00 0.00 13.00 0.15
92 3.00 0.00 0.00 0.00 3.00 0.15
94 3.00 0.00 0.00 0.00 3.00 0.15
95 3.00 0.00 0.00 0.00 3.00 0.15
96 3.00 10.00 0.00 0.00 13.00 0.15
97 3.00 0.00 0.00 0.00 3.00 0.15
98 3.00 0.00 0.00 0.00 3.00 0.15
99 3.00 0.00 0.00 0.00 3.00 0.15
101 3.00 0.00 0.00 0.00 3.00 0.15
102 3.00 0.00 0.00 0.00 3.00 0.15
103 3.00 0.00 0.00 0.00 3.00 0.15
104 3.00 0.00 0.00 0.00 3.00 0.15
105 3.00 0.00 0.00 0.00 3.00 0.15
106 3.00 10.00 0.00 0.00 13.00 0.15
108 3.00 0.00 0.00 0.00 3.00 0.15
109 3.00 0.00 0.00 0.00 3.00 0.15
110 3.00 0.00 0.00 0.00 3.00 0.15
111 3.00 0.00 0.00 0.00 3.00 0.15
112 3.00 5.00 0.00 0.00 8.00 0.15
113 3.00 0.00 0.00 0.00 3.00 0.15
114 3.00 10.00 0.00 0.00 13.00 0.15
115 3.00 0.00 0.00 0.00 3.00 0.15
4.27