Exhibit 4
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar and Authenticating Agent,
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP24
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................5
Section 1.2 Calculations Respecting Mortgage Loans.........................75
Section 1.3 Calculations Respecting Accrued Interest.......................76
Section 1.4 Interpretation.................................................76
Section 1.5 ARD Loans......................................................76
Section 1.6 Certain Matters with respect to Loan Pairs and
A/B Mortgage Loans.............................................77
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans...................................79
Section 2.2 Acceptance by Trustee..........................................82
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of
Representations and Warranties.................................84
Section 2.4 Representations and Warranties.................................90
Section 2.5 Conveyance of Interests........................................91
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans........92
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates...............................................92
Section 3.2 Registration...................................................93
Section 3.3 Transfer and Exchange of Certificates..........................93
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates..............99
Section 3.5 Persons Deemed Owners.........................................100
Section 3.6 Access to List of Certificateholders' Names and
Addresses.....................................................100
Section 3.7 Book-Entry Certificates.......................................100
Section 3.8 Notices to Clearing Agency....................................104
Section 3.9 Definitive Certificates.......................................104
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer...............................105
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage
Loans and Serviced Pari Passu Mortgage
Loans.........................................................105
Section 4.2 Servicing Advances............................................106
Section 4.3 Advances by the Trustee.......................................107
Section 4.4 Evidence of Nonrecoverability.................................108
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Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage
Loan..........................................................109
Section 4.6 Reimbursement of Advances and Advance
Interest......................................................109
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections...................................................111
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account......................................115
Section 5.3 Distribution Account and Reserve Account......................125
Section 5.4 Paying Agent Reports..........................................127
Section 5.5 Paying Agent Tax Reports......................................129
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.......................................129
Section 6.2 REMIC I.......................................................130
Section 6.3 REMIC II......................................................130
Section 6.4 Reserved......................................................132
Section 6.5 REMIC III.....................................................132
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability...........................138
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate
Prepayment Interest Shortfalls................................140
Section 6.8 Adjustment of Servicing Fees..................................141
Section 6.9 Appraisal Reductions..........................................141
Section 6.10 Compliance with Withholding Requirements......................142
Section 6.11 Prepayment Premiums...........................................142
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND THE
LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent....................143
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent....144
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage
Loans.........................................................146
Section 7.4 The Trustee and the Paying Agent May Own
Certificates..................................................148
Section 7.5 Eligibility Requirements for the Trustee and the Paying
Agent.........................................................148
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent.........................................................148
Section 7.7 Successor Trustee or Paying Agent.............................150
Section 7.8 Merger or Consolidation of Trustee or Paying Agent............151
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian.....................................................151
Section 7.10 Authenticating Agents.........................................153
Section 7.11 Indemnification of Trustee and the Paying Agent...............154
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Section 7.12 Fees and Expenses of Trustee and the Paying Agent.............156
Section 7.13 Collection of Moneys..........................................156
Section 7.14 Trustee To Act; Appointment of Successor......................156
Section 7.15 Notification to Holders.......................................159
Section 7.16 Representations and Warranties of the Trustee
and the Paying Agent..........................................159
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee and the Paying
Agent.........................................................161
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders............................................161
Section 7.19 Appointment of a Fiscal Agent.................................162
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties..........................163
Section 8.2 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Master Servicer......................166
Section 8.3 Master Servicer's General Power and
Duties........................................................166
Section 8.4 Primary Servicing and Sub-Servicing...........................172
Section 8.5 Servicers May Own Certificates................................175
Section 8.6 Maintenance of Hazard Insurance, Other Insurance,
Taxes and Other...............................................175
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause.........................178
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage
Files.........................................................182
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...................185
Section 8.12 Reserved......................................................188
Section 8.13 Reserved......................................................188
Section 8.14 CMSA Operating Statement Analysis Reports
Regarding the Mortgaged Properties............................188
Section 8.15 Other Available Information and Certain Rights of
the Master Servicer...........................................189
Section 8.16 Rule 144A Information.........................................191
Section 8.17 Inspections...................................................192
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents......................................................192
Section 8.19 Specially Serviced Mortgage Loans.............................195
Section 8.20 Representations, Warranties and Covenants of the Master
Servicer......................................................196
Section 8.21 Merger or Consolidation.......................................197
Section 8.22 Resignation of Master Servicer................................198
Section 8.23 Assignment or Delegation of Duties by Master Servicer.........198
Section 8.24 Limitation on Liability of the Master Servicer and
Others........................................................199
Section 8.25 Indemnification; Third-Party Claims...........................201
Section 8.26 Reserved......................................................204
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions....................................................204
Section 8.28 Termination...................................................205
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Section 8.29 Procedure Upon Termination....................................207
Section 8.30 Operating Adviser Contact with Master Servicer
and Special Servicer..........................................210
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY
SPECIAL SERVICER
Section 9.1 Duties of Special Servicer....................................210
Section 9.2 Fidelity Bond and Errors and Omissions
Insurance Policy of Special Servicer..........................212
Section 9.3 Sub-Servicers.................................................212
Section 9.4 Special Servicer General Powers and Duties....................212
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans;
Due-On-Encumbrance Clauses....................................215
Section 9.6 Release of Mortgage Files.....................................220
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee..........................221
Section 9.8 Representations, Warranties and Covenants of the Special
Servicer......................................................222
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies..................................223
Section 9.10 Presentment of Claims and Collection of Proceeds..............225
Section 9.11 Compensation to the Special Servicer..........................225
Section 9.12 Realization Upon Defaulted Mortgage Loans.....................226
Section 9.13 Foreclosure....................................................228
Section 9.14 Operation of REO Property.....................................229
Section 9.15 Sale of REO Property..........................................232
Section 9.16 Realization on Collateral Security............................233
Section 9.17 Reserved......................................................233
Section 9.18 Reserved......................................................234
Section 9.19 Reserved......................................................234
Section 9.20 Merger or Consolidation.......................................234
Section 9.21 Resignation of Special Servicer...............................234
Section 9.22 Assignment or Delegation of Duties by Special Servicer........235
Section 9.23 Limitation on Liability of the Special Servicer and
Others........................................................235
Section 9.24 Indemnification; Third-Party Claims...........................238
Section 9.25 Reserved......................................................239
Section 9.26 Special Servicer May Own Certificates.........................239
Section 9.27 Tax Reporting.................................................240
Section 9.28 Application of Funds Received.................................240
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions....................................................240
Section 9.30 Termination...................................................240
Section 9.31 Procedure Upon Termination....................................242
Section 9.32 Certain Special Servicer Reports..............................243
Section 9.33 Special Servicer to Cooperate with the Master Servicer,
the Trustee and Paying Agent..................................247
Section 9.34 Reserved......................................................248
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Section 9.35 Reserved......................................................248
Section 9.36 Sale of Defaulted Mortgage Loans..............................248
Section 9.37 Operating Adviser; Elections..................................251
Section 9.38 Limitation on Liability of Operating Adviser..................252
Section 9.39 Duties of Operating Adviser...................................252
Section 9.40 Rights of the Holder of a B Note..............................255
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation
of All Mortgage Loans.........................................256
Section 10.2 Procedure Upon Termination of Trust...........................257
Section 10.3 Additional Trust Termination Requirements.....................258
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders...............................259
Section 11.2 Access to List of Holders.....................................260
Section 11.3 Acts of Holders of Certificates...............................261
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration..........................................261
Section 12.2 Prohibited Transactions and Activities........................266
Section 12.3 Modifications of Mortgage Loans...............................267
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status..................................................267
Section 12.5 Class P Grantor Trust.........................................267
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness.........................268
Section 13.2 Information to be Provided by the Master Servicer,
the Special Servicer, any Primary Servicer and the Paying
Agent.........................................................269
Section 13.3 Filing Obligations............................................270
Section 13.4 Form 10-D Filings.............................................270
Section 13.5 Form 10-K Filings.............................................272
Section 13.6 Xxxxxxxx-Xxxxx Certification..................................274
Section 13.7 Form 8-K Filings..............................................275
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports ...........................277
Section 13.9 Annual Compliance Statements .................................278
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria ...........................................279
Section 13.11 Annual Independent Public Accountants' Servicing
Report........................................................281
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Section 13.12 Indemnification ..............................................282
Section 13.13 Amendments....................................................283
Section 13.14 Exchange Act Report Signatures ...............................283
Section 13.15 Termination of the Paying Agent and Sub-Servicers ............284
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement...................................284
Section 14.2 Entire Agreement..............................................284
Section 14.3 Amendment.....................................................285
Section 14.4 GOVERNING LAW.................................................287
Section 14.5 Notices.......................................................287
Section 14.6 Severability of Provisions....................................288
Section 14.7 Indulgences; No Waivers.......................................288
Section 14.8 Headings Not to Affect Interpretation.........................288
Section 14.9 Benefits of Agreement ........................................288
Section 14.10 Special Notices to the Rating Agencies .......................288
Section 14.11 Counterparts..................................................290
Section 14.12 Intention of Parties..........................................290
Section 14.13 Recordation of Agreement......................................291
Section 14.14 Rating Agency Monitoring Fees.................................292
Section 14.15 Acknowledgement by Primary Servicer...........................292
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EXHIBITS AND SCHEDULES
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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-M Certificate
EXHIBIT A-7 Form of Class A-J Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class L Certificate
EXHIBIT A-18 Form of Class M Certificate
EXHIBIT A-19 Form of Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of Class P Certificate
EXHIBIT A-22 Form of Class R-I Certificate
EXHIBIT A-23 Form of Class R-II Certificate
EXHIBIT A-24 Form of Class R-III Certificate
EXHIBIT A-25 Form of Class X-1 Certificate
EXHIBIT A-26 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of
Definitive Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of
Interests in Book-Entry Privately Offered Certificates
(Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Principal Primary Servicing Agreement
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
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EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d))
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (BSCMI)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Xxxxx Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal II)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer
(Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer
(Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U 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 Xxxxx Fargo primary servicing agreement
(Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 13.6)
EXHIBIT CC-1 Reporting Servicer Form of Performance Certification
(Section 13.6)
EXHIBIT DD Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I BSCMI Loan Schedule
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal II Loan Schedule
SCHEDULE IV MSMC Loan Schedule
SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section
5.1(g) is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and
"Class X-2 Strip Rate")
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by
an Environmental Insurance Policy
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SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after
the end of a Collection Period
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose
Servicing Fees Accrue on a 30/360 Basis
SCHEDULE XIII Class A-AB Planned Principal Balance
SCHEDULE XIV Servicing Criteria to be Addressed in Assessment of
Compliance
SCHEDULE XV Additional Form 10-D Disclosure
SCHEDULE XVI Additional Form 10-K Disclosure
SCHEDULE XVII Form 8-K Disclosure Information
SCHEDULE XVIII Additional Disclosure Notification
SCHEDULE XIX Seller Sub-Servicers
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THIS POOLING AND SERVICING AGREEMENT is dated as of October 1,
2006 (this "Agreement") between BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES
INC., a Delaware corporation, as depositor (the "Depositor"), XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as master servicer (the "Master Servicer"), ARCAP
SERVICING, INC., as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee and custodian of the Trust (the "Trustee") and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, only in its capacity as paying agent
(the "Paying Agent"), certificate registrar and authenticating agent.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), Principal
Commercial Funding II, LLC, as seller ("Principal II"), Bear Xxxxxxx Commercial
Mortgage, Inc., as seller ("BSCMI") and Xxxxx Fargo Bank, National Association,
as seller ("Xxxxx Fargo") and will be the owner of the Mortgage Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
which is hereby created. On the Closing Date, the Depositor will acquire (i) the
REMIC I Regular Interests and the Class R-I Certificates as consideration for
its transfer to the Trust of the Mortgage Loans (other than any Excess Interest
payable thereon) and the other property constituting REMIC I; (ii) the REMIC II
Regular Interests and the Class R-II Certificates as consideration for its
transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III
Certificates (other than the portion of the Class P Certificates representing
the right to receive Excess Interest) as consideration for its transfer of the
REMIC II Regular Interests to the Trust; and (iv) the portion of the Class P
Certificates representing the right to receive Excess Interest as consideration
for its transfer to the Trust of such right. 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, and (C) the REMIC III
Certificates representing in the aggregate the entire beneficial ownership of
REMIC III and, in the case of the Class P Certificates, the Class P Grantor
Trust. Excess Interest received on the Mortgage Loans shall be held in the Class
P Grantor Trust for the benefit of the Class P Certificates. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual Certificates and the REMIC Regular Certificates (including the
Class P Certificates to the extent of their interest in any Excess 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-M and Class A-J Certificates
(collectively, the "Registered Certificates") will be offered for sale pursuant
to the prospectus (the "Prospectus") dated September 13, 2006, as supplemented
by a free writing prospectus dated October 6, 2006, (the "Free Writing
Prospectus", and together with the Prospectus, the "Preliminary Prospectus
Supplement"), and as further supplemented by the final prospectus supplement
dated October 18, 2006 (the "Prospectus Supplement", and together with the
Prospectus, the "Final Prospectus Supplement"), and the Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates will be offered for sale pursuant to a Private Placement Memorandum
dated October 18, 2006.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a "latest possible maturity date" set to the Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. The Class R-I Certificate will be designated as the sole Class of
residual interests in REMIC I and will have no Certificate Balance and no
Pass-Through Rate, but will be entitled to receive the proceeds of any assets
remaining in REMIC I after all Classes of REMIC I Regular Interests have been
paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class or Component
designation, the corresponding REMIC II Regular Interest (the "Corresponding
REMIC II Regular Interest"), the Corresponding Components of the Class X-1 or
Class X-2 Certificates and the initial Certificate Balance for each Class of
Principal Balance Certificates (the "Corresponding Certificates").
Corresponding
Initial REMIC II Components of
Initial Class Corresponding Regular Interest Class X-1 or
Corresponding Certificate REMIC II Regular Certificate Class X-2
Certificates Balance Interests (1) Balance Certificates (1)
------------- -------------- ---------------- ---------------- ----------------
Class A-1 $59,200,000 A-1A $5,294,000 A-1A
A-1B $53,906,000 A-1B
Class A-2 $173,230,000 A-2A $6,744,000 A-2A
A-2B $63,581,000 A-2B
A-2C $61,125,000 A-2C
A-2D $41,780,000 A-2D
Class A-3 $91,660,000 A-3 $91,660,000 A-3
Class A-AB $81,000,000 A-ABA $73,039,000 A-ABA
A-ABB $7,961,000 A-ABB
Class A-4 $715,258,000 A-4A $41,163,000 A-4A
A-4B $115,181,000 A-4B
A-4C $558,914,000 A-4C
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Class A-M $153,472,000 A-M $153,472,000 A-M
Class A-J $101,676,000 A-J $101,676,000 A-J
Class B $28,776,000 B-1 $5,820,000 B-1
B-2 $20,020,000 B-2
B-3 $2,936,000 B-3
Class C $13,429,000 C $13,429,000 C
Class D $21,102,000 D-1 $18,739,000 X-0
X-0 $2,363,000 D-2
Class E $13,429,000 E-1 $5,712,000 E-1
E-2 $7,717,000 E-2
Class F $13,429,000 F $13,429,000 F
Class G $19,184,000 G-1 $9,986,000 G-1
G-2 $9,198,000 G-2
Class H $9,592,000 H $9,592,000 H
Class J $3,837,000 J $3,837,000 J
Class K $3,837,000 K $3,837,000 K
Class L $5,755,000 L-1 $2,716,000 X-0
X-0 x0,000,000 X-0
Class M $5,755,000 M $5,755,000 M
Class N $1,918,000 N $1,918,000 N
Class O $1,919,000 O $1,919,000 O
Class P $17,265,954 P $17,265,954 P
(1) The REMIC II Regular Interests and the Components of the Class X-1 and Class
X-2 Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute the
"Corresponding REMIC II Regular Interest" and the "Corresponding Components,"
respectively, with respect to each other.
REMIC III AND CLASS P GRANTOR TRUST
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for each Class of REMIC III Certificates
comprising the interests in REMIC III created hereunder, and in the case of the
Class P Certificates, the beneficial ownership interest in the Class P Grantor
Trust.
Final Scheduled
REMIC III Interest Initial Initial Aggregate Certificate Distribution
Designation Pass-Through Rate(a) Balance or Notional Amount Date(b)
------------------ -------------------- ----------------------------- --------------
Class A-1 4.905% $59,200,000 9/12/2011
Class A-2 5.478% $173,230,000 10/12/2011
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Final Scheduled
REMIC III Interest Initial Initial Aggregate Certificate Distribution
Designation Pass-Through Rate(a) Balance or Notional Amount Date(b)
------------------ -------------------- ----------------------------- --------------
Class A-3 5.531% $91,660,000 9/12/2013
Class A-AB 5.533% $81,000,000 4/12/2016
Class A-4 5.537% $715,258,000 9/12/2016
Class A-M 5.568% $153,472,000 10/12/2016
Class A-J 5.598% $101,676,000 10/12/2016
Class B 5.657% $28,776,000 10/12/2016
Class C 5.687% $13,429,000 10/12/2016
Class D 5.756% $21,102,000 10/12/2016
Class E 5.811% $13,429,000 1/12/2018
Class F 5.940% $13,429,000 1/12/2018
Class G 6.121% $19,184,000 1/12/2018
Class H 6.194% $9,592,000 1/12/2018
Class J 5.262% $3,837,000 1/12/2018
Class K 5.262% $3,837,000 1/12/2018
Class L 5.262% $5,755,000 1/12/2018
Class M 5.262% $5,755,000 5/12/2020
Class N 5.262% $1,918,000 4/12/2021
Class O 5.262% $1,919,000 7/12/2021
Class P(c) 5.262% $17,265,954 9/12/2026
Class X-1 0.050% $1,534,723,954 9/12/2026
Class X-2 0.628% $1,502,572,000 10/12/2013
Class R-III(d) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (other than the Residual
Certificates) will be determined as set forth herein under the definition of
"Pass-Through Rate." The initial Pass-Through Rates shown above are
approximate for the Class G, Class H, 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).
(c) The Class P Certificates represent ownership of a REMIC III Regular Interest
(entitled to the principal and interest set forth above). In addition, the
Class P Certificates will be entitled to Excess Interest (which will not be
a part of any REMIC Pool). The parties intend that (i) the portion of the
Trust representing the Excess Interest and the Excess Interest Sub-account
shall be treated as a grantor trust under subpart E of Part 1 of subchapter
J of Chapter 1 of Subtitle A of the Code and (ii) the Class P Certificates
(other than the portion thereof consisting of a REMIC III Regular Interest)
shall represent undivided beneficial interests in the portion of the Trust
consisting of the entitlement to receive Excess Interest (the "Class P
Grantor Trust").
(d) 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 $1,534,723,955.
As provided herein, with respect to the Trust, the Paying Agent
on behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
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designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (including, in the case of the Class P Certificates, the Class P REMIC
Interest represented by the Class P Certificates) will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
As provided herein, with respect to the Trust, the Paying Agent
on behalf of the Trustee will treat the right to any Excess Interest in respect
of the ARD Loans and the Excess Interest Sub-Account as a grantor trust under
Subpart E of Part I of Subchapter J of the Code.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"A Note" means, with respect to any A/B Mortgage Loan, the
mortgage note (or notes) included in the Trust that is senior in right of
payment to the related B Note 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 any Mortgage Loan serviced under this
Agreement that is divided into a senior mortgage note and a subordinated
mortgage note, which senior mortgage note 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. There are no A/B
Mortgage Loans related to the Trust.
"Accountant" means a person engaged in the practice of accounting
who is Independent.
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"Accrued Certificate Interest" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
other than the Residual Certificates, interest accrued during the Interest
Accrual Period relating to such Distribution Date on the Aggregate Certificate
Balance of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X-1 and the Class X-2 Certificates for each
Distribution Date will equal the aggregate Accrued Component Interest for the
related Interest Accrual Period for all of their respective Components for such
Distribution Date.
"Accrued Component Interest" means, with respect to each
Component of the Class X-1 and the Class X-2 Certificates for any Distribution
Date, one month's interest at the Class X-1 Strip Rate or the Class X-2 Strip
Rate applicable to such Component for such Distribution Date, accrued on the
Component Notional Amount of such Component outstanding immediately prior to
such Distribution Date. Accrued Component Interest shall be calculated on a
30/360 basis and, with respect to any Component and any Distribution Date, shall
be deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
"Acquisition Date" means the date upon which, under the Code (and
in particular the REMIC Provisions and Section 856(e) of the Code), the Trust or
a REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan and Loan Pair).
"Additional Disclosure Notification" means the form of
notification to be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8-K Disclosure Information which is attached hereto
as Schedule XVIII.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 13.4.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 13.5.
"Additional Review Period" has the meaning set forth in Section
9.4(d).
"Additional Servicer" means each Affiliate of the Master
Servicer, Principal II, MSMC, BSCMI, the Depositor or any of the Underwriters
that Services any of the Mortgage Loans and each Person, other than the Special
Servicer, who is not an Affiliate of the Master Servicer, Principal II, MSMC,
BSCMI, the Depositor or any of the Underwriters, and who Services 10% or more of
the Mortgage Loans (based on their Principal Balance). For clarification
purposes, the Paying Agent is an Additional Servicer and the Trustee is not an
Additional Servicer.
"Additional Trust Expense" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (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
Primary Servicer, the Trustee, the Paying Agent (or any other Person) pursuant
to
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the terms of this Agreement; (iv) to the extent not otherwise paid, any federal,
state, or local taxes imposed on the Trust or its assets and paid from amounts
on deposit in the Certificate Account or Distribution Account; and (v) to the
extent not otherwise included in the calculation of a Realized Loss and not
covered by indemnification by one of the parties hereto or otherwise, any other
unanticipated cost, liability, or expense (or portion thereof) of the Trust
(including costs of collecting such amounts or other Additional Trust Expenses)
that the Trust has not recovered, and in the judgment of the Master Servicer (or
Special Servicer) will not, recover from the related Mortgagor or Mortgaged
Property or otherwise, including a Modification Loss described in clause (ii) of
the definition thereof; provided, however, that, in the case of an A/B Mortgage
Loan, "Additional Trust Expense" shall not include any of the foregoing amounts
that have been recovered from the related Mortgagor or Mortgaged Property as a
result of the subordination of the related B Note in accordance with the terms
of the related Intercreditor Agreement. Notwithstanding anything to the
contrary, "Additional Trust Expenses" shall not include allocable overhead of
the Master Servicer, the Special Servicer, any Non-Serviced Mortgage Loan Master
Servicer, any Non-Serviced Mortgage Loan Special Servicer, the Trustee, the
Paying Agent or the Certificate Registrar, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses, and similar internal costs and expenses.
"Administrative Cost Rate" means, with respect to each Mortgage
Loan, the sum of the Master Servicing Fee Rate, the Primary Servicing Fee Rate,
the Excess Servicing Fee Rate, the Trustee Fee Rate and in the case of any
Non-Serviced Mortgage Loan, the related Pari Passu Loan Servicing Fee Rate.
"Advance" means either a P&I Advance or a Servicing Advance.
"Advance Interest" means interest payable to the Master Servicer,
the Special Servicer or the Trustee on outstanding Advances (other than
Unliquidated Advances) pursuant to Section 4.5 of this Agreement and any
interest payable to any Non-Serviced Mortgage Loan Master Servicer, any
Non-Serviced Mortgage Loan Trustee or any Non-Serviced Mortgage Loan Fiscal
Agent with respect to Pari Passu Loan Nonrecoverable Advances pursuant to
Section 4.4(b) hereof.
"Advance Rate" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"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 Grantor Trust Pool as a grantor trust or (ii) result in the
imposition of a tax upon the income of the Grantor Trust Pool or its respective
assets or transactions.
"Adverse REMIC Event" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of
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any REMIC Pool or any of their respective assets or transactions, including
(without limitation) the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on prohibited contributions set forth in
Section 860G(d) of the Code.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Certificate Balance" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests, the REMIC II Regular Interests or REMIC III Regular Interests, as the
case may be, at any date of determination. With respect to a Class of Principal
Balance Certificates, REMIC I Regular Interests, REMIC II Regular Interests or
REMIC III Regular Interests, Aggregate Certificate Balance shall mean the
aggregate of the Certificate Balances of all Certificates or Interests, as the
case may be, of that Class at any date of determination.
"Aggregate Principal Balance" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"Agreement" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"Anticipated Repayment Date" means, with respect to each ARD
Loan, the anticipated maturity date set forth in the related Mortgage Note.
"Appraisal" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. ss. 225.62.
"Appraisal Event" means, with respect to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair, not later than the earliest of (i) the date 120 days
after the occurrence of any delinquency in payment with respect to such Mortgage
Loan, A/B Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii)
the date 30 days after receipt of notice that the related Mortgagor has filed a
bankruptcy petition or the related Mortgagor has become the subject of
involuntary bankruptcy proceedings or the related Mortgagor has consented to the
filing of a bankruptcy proceeding against it or a receiver is appointed in
respect of the related Mortgaged Property, provided such petition or appointment
is still in effect, (iii) the date that is 30 days following the date the
related Mortgaged Property becomes an REO Property and (iv) the effective date
of any modification to a Money Term of a Mortgage Loan, A/B Mortgage Loan or
Loan Pair, other than an extension of the date that a Balloon Payment is due for
a period of less than six months from the original due date of such Balloon
Payment.
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"Appraisal Reduction" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.9, an amount equal to the excess of (A) the sum
of (i) the Scheduled Principal Balance of such Mortgage Loan, Loan Pair or A/B
Mortgage Loan (or, in the case of an REO Property, the related REO Mortgage
Loan) less the principal amount of any guaranty or surety bond with a rating of
at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization and the undrawn principal amount of any letter of credit or
debt service reserve, if applicable, that is then securing such Mortgage Loan or
Loan Pair, (ii) to the extent not previously advanced by the Master Servicer or
the Trustee, all accrued and unpaid interest on such Mortgage Loan, Loan Pair or
A/B Mortgage Loan at a per annum rate equal to the Mortgage Rate, (iii) all
unreimbursed Advances (including Unliquidated Advances) and interest on Advances
(other than Unliquidated Advances) at the Advance Rate with respect to such
Mortgage Loan, Loan Pair or A/B Mortgage Loan, and (iv) to the extent funds on
deposit in any applicable Escrow Accounts are not sufficient therefor, and to
the extent not previously advanced by the Master Servicer, the Special Servicer
or the Trustee all currently due and unpaid real estate taxes and assessments,
insurance premiums and, if applicable, ground rents and other amounts which were
required to be deposited in any Escrow Account (but were not deposited) in
respect of such Mortgaged Property or REO Property, as the case may be, over (B)
90% of the Appraised Value (net of any prior mortgage liens) of such Mortgaged
Property or REO Property as determined by such Appraisal or internal valuation,
as the case may be, plus the full amount of any escrows held by or on behalf of
the Trustee as security for the Mortgage Loan, Loan Pair or A/B Mortgage Loan
(less the estimated amount of the obligations anticipated to be payable in the
next twelve months to which such escrows relate). Each Appraisal or internal
valuation for a Required Appraisal Loan shall be updated annually for so long as
an Appraisal Reduction exists. The Appraisal Reduction for each Required
Appraisal Loan will be recalculated annually based on subsequent Appraisals,
internal valuations or updates. In addition, the Operating Adviser (including,
without limitation, any request of a B Note holder, at its expense as and to the
extent provided for in the related Intercreditor Agreement, with respect to the
related A/B Mortgage Loan (or Operating Adviser on its behalf) if there shall
have been a determination that such holder will no longer be the directing
holder) may at any time request the Special Servicer to obtain, at the Operating
Adviser's expense, an updated Appraisal, with a corresponding adjustment to the
amount of the Appraisal Reduction. Any Appraisal Reduction for any Mortgage
Loan, Loan Pair or A/B Mortgage Loan shall be reduced to reflect any Realized
Principal Losses on the Required Appraisal Loan, Loan Pair or A/B Mortgage Loan.
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan, Loan Pair or A/B Mortgage Loan is brought current under the then
current terms of the Mortgage Loan, Loan Pair or A/B Mortgage Loan for at least
three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan, Loan Pair or A/B Mortgage Loan after it has been paid in full,
liquidated, repurchased or otherwise disposed of. Any Appraisal Reduction in
respect of any Non-Serviced Mortgage Loan shall be calculated in accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement based
upon the applicable allocation of the items set forth in clauses (A) and (B)
above between the Non-Serviced Mortgage Loans and the related Non-Serviced
Companion Mortgage Loans and all other related pari passu loans. Any Appraisal
Reduction in respect of any Loan Pair shall be allocated, as between a Serviced
Pari Passu Mortgage Loan and the related Serviced Companion Mortgage Loan, pro
rata according to their respective Principal Balances. Any Appraisal Reduction
with respect to an A/B Mortgage Loan shall be allocated first to the related B
Note, up to the Principal
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Balance thereof, and any excess shall be allocated to the related A Note. In the
case of the 000 Xxxxx Xxxxx Xxxxxx Mortgage Loan, any Appraisal Reduction will
be calculated in respect of the 000 Xxxxx Xxxxx Xxxxxx Loan Group taken as a
whole and any such Appraisal Reduction will be allocated to the 000 Xxxxx Xxxxx
Xxxxxx Pari Passu Loan and the 000 Xxxxx Xxxxx Xxxxxx Companion Loan, pro rata
based on their respective Principal Balances.
"Appraised Value" means, (i) with respect to any Mortgaged
Property (other than the Mortgaged Property relating to a Non-Serviced Mortgage
Loan), the appraised value thereof determined by an Appraisal of the Mortgaged
Property securing such Mortgage Loan made by an Independent appraiser selected
by the Master Servicer or the Special Servicer, as applicable or, in the case of
an internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation and
(ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage
Loan, the portion of the appraised value allocable thereto.
"ARD Loan" means any Mortgage Loan designated as such on the
Mortgage Loan Schedule.
"Assignment of Leases" means, with respect to any Mortgage Loan,
any assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"Assignment of Mortgage" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"Assumed Scheduled Payment" means: (i) with respect to any
Balloon Mortgage Loan or any B Note as to which advancing is required hereunder
for its Maturity Date (provided that such 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
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Due Date therefor as of which the related REO Property remains part of the
Trust, the scheduled monthly payment of principal and interest deemed to be due
in respect thereof on such Due Date equal to the Scheduled Payment (or, in the
case of a Balloon Mortgage Loan or B Note described in the preceding clause of
this definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan or the related B Note on the last Due Date prior to its
becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for
any A Note or B Note shall be calculated solely by reference to the terms of
such A Note or B Note, as applicable (as modified in connection with any
bankruptcy or similar proceeding involving the related Mortgagor or pursuant to
a modification, waiver or amendment of such Mortgage Loan granted or agreed to
by the Master Servicer or the Special Servicer pursuant to the terms hereof) and
without regard to the remittance provisions of the related Intercreditor
Agreement.
"Authenticating Agent" means any authenticating agent serving in
such capacity pursuant to Section 7.10.
"Authorized Officer" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"Available Advance Reimbursement Amount" has the meaning set
forth in Section 4.6(a).
"Available Distribution Amount" means, with respect to any
Distribution Date, an amount equal to the aggregate of (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 Primary Servicer in
respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest 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
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such Distribution Date occurs in March of any year, commencing March 2007 or on
the final Distribution Date, the aggregate of the Interest Reserve Amounts then
held on deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan.
"B Note" means, with respect to any A/B Mortgage Loan, any
related subordinated Mortgage Note not included in the Trust, which is
subordinated in right of payment to the related A Note to the extent set forth
in the related Intercreditor Agreement.
"Balloon Mortgage Loan" means a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that provides for Scheduled Payments based
on an amortization schedule that is significantly longer than its term to
maturity and that is expected to have a remaining principal balance equal to or
greater than 5% of its Cut-Off Date outstanding 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 or equal to the Mortgage Rate on the related
Mortgage Loan, then the Base Interest Fraction will equal zero; provided,
however, that if the Discount Rate referred to above is greater than or equal to
the Mortgage Rate on the related Mortgage Loan, but is less than the
Pass-Through Rate on that Class of Certificates, then the Base Interest Fraction
shall be equal to 1.0.
"Book-Entry Certificates" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as set forth in Section 3.7; provided, that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer authorized and Definitive Certificates are to be issued
to the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BSCMI" has the meaning set forth in the Preliminary Statement
hereto.
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"BSCMI Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"Business Day" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Chicago, Illinois, Des
Moines, Iowa (but only with respect to matters related to the performance of
obligations of Principal Global Investors, LLC as Primary Servicer under the
Primary Servicing Agreement), San Francisco, California or the principal cities
in which the Special Servicer, the Trustee, the Paying Agent or the Master
Servicer conducts servicing or trust operations, or (iii) a day on which banking
institutions or savings associations in Minneapolis, Minnesota, Columbia,
Maryland, New York, New York, Chicago, Illinois or San Francisco, California are
authorized or obligated by law or executive order to be closed.
"Cash Liquidation" means, as to any Defaulted Mortgage Loan other
than a Mortgage Loan with respect to which the related Mortgaged Property became
REO Property, the sale of such Defaulted Mortgage Loan. The Master Servicer
shall maintain records in accordance with the Servicing Standard (and, in the
case of Specially Serviced Mortgage Loans, based on the written reports with
respect to such Cash Liquidation delivered by the Special Servicer to the Master
Servicer), of each Cash Liquidation.
"Category 1 Request" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are defined in the Primary Servicing
Agreement.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"Certificate Account" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
each of which shall be an Eligible Account.
"Certificate Balance" means, with respect to any Certificate
(other than the Class 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 in the Preliminary Statement
hereto (in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be, and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate in reduction of Certificate Balance pursuant to Section 6.6, plus
(B) an amount equal to the amounts identified in clause (I)(C) of the definition
of Principal Distribution Amount with respect to such Distribution Date, such
increases to be allocated to the Principal Balance Certificates or Interests in
sequential order (i.e. to the most senior Class first), in each case up to the
amount of Realized Losses previously allocated thereto and not otherwise
reimbursed hereunder.
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"Certificate Owner" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"Certificate Register" has the meaning set forth in Section 3.2.
"Certificate Registrar" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"Certificateholders" has the meaning set forth in the definition
of "Holder."
"Certificates" means, collectively, the REMIC III Certificates,
the Class R-I Certificates and the Class R-II Certificates.
"Certification Parties" has the meaning set forth in Section 13.6
and shall also include such parties in an Other Securitization.
"Certifying Person" has the meaning set forth in Section 13.6.
"Certifying Servicer" has the meaning set forth in Section 13.9.
"Class" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"Class A-1 Certificates," "Class A-2 Certificates," "Class A-3
Certificates," "Class A-AB Certificates," "Class A-4 Certificates," "Class A-M
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 R-I
Certificates," "Class R-II Certificates" or "Class R-III 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 A-J," "Class X-1," "Class X-2," "Class B,"
"Class C," "Class D," "Class E," "Class F," "Class G," "Class H," "Class J,"
"Class K," "Class L," "Class M," "Class N," "Class O," "Class P," "Class R-I,"
"Class R-II" and "Class R-III" respectively, on the face thereof, in
substantially the form attached hereto as Exhibits.
"Class A Senior Certificates" means the Class A-1 Certificates,
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 Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1A.
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"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 Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-1B.
"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 Component Notional Amount 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 Component Notional Amount 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 Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-2C.
"Class A-2D Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-2D.
"Class A-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-3.
"Class A-ABA Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-AB Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-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 Component Notional Amount 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 Component Notional Amount 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 Component Notional Amount 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 Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-4C.
"Class A-M Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-M Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-M.
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"Class A-J Component" means a component of the beneficial
interest in REMIC III evidenced by the Class A-J Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest A-J.
"Class B-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest B-1.
"Class B-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest B-2.
"Class B-3 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest B-3.
"Class C Component" means a component of the beneficial interest
in REMIC III evidenced by the Class C Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest C.
"Class D-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest D-1.
"Class D-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest D-2.
"Class E-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class E Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest E-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 Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest E-2.
"Class F Component" means a component of the beneficial interest
in REMIC III evidenced by the Class F Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest F.
"Class G-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class G Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest G-1.
"Class G-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class G Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest G-2.
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"Class H Component" means a component of the beneficial interest
in REMIC III evidenced by the Class H Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest H.
"Class J Component" means a component of the beneficial interest
in REMIC III evidenced by the Class J Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest J.
"Class K Component" means a component of the beneficial interest
in REMIC III evidenced by the Class K Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest K.
"Class L-1 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class L Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest L-1.
"Class L-2 Component" means a component of the beneficial
interest in REMIC III evidenced by the Class L Certificates, which component
represents a Component Notional Amount equal to the Certificate Balance of the
REMIC II Regular Interest L-2.
"Class M Component" means a component of the beneficial interest
in REMIC III evidenced by the Class M Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest M.
"Class N Component" means a component of the beneficial interest
in REMIC III evidenced by the Class N Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest N.
"Class O Component" means a component of the beneficial interest
in REMIC III evidenced by the Class O Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest O.
"Class P Component" means a component of the beneficial interest
in REMIC III evidenced by the Class P Certificates, which component represents a
Component Notional Amount equal to the Certificate Balance of the REMIC II
Regular Interest P.
"Class P Grantor Trust" means that portion of the Trust
consisting of the Class P Grantor Trust Interest.
"Class P Grantor Trust Interest" means that portion of the rights
represented by the Class P Certificates that evidences beneficial ownership of
the Excess Interest and the Excess Interest Sub-account, as set forth in Section
12.5(a) hereof.
"Class P REMIC Interest" means that portion of the rights
represented by the Class P Certificates that evidences a regular interest in
REMIC III, which rights consist of the rights to the distributions described in
Section 6.5 hereof and all other rights of the Holders of the Class P
Certificates other than those comprising the Class P Grantor Trust.
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"Class X Certificates" means the Class X-1 Certificates and the
Class X-2 Certificates.
"Class X-1 Notional Amount" means, with respect to the Class X-1
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"Class X-1 Strip Rate" means, with respect to any Class of
Components (other than Components that are also Class X-2 Components) for any
Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of Components that
are also Class X-2 Components, (i) for any Distribution Date occurring on or
before the related Class X-2 Component Crossover Date, a rate per annum equal
to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date, minus (y) the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule IX attached hereto and (2) the Pass
Through Rate for the Class of Corresponding Certificates, and (ii) for any
Distribution Date occurring after the related Class X-2 Component Crossover
Date, a rate per annum equal to (x) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding Certificates (provided that in no event shall any Class X-1 Strip
Rate be less than zero).
"Class X-2 Component Crossover Date" (i) with respect to the
Class A-1B Component, Class A-2A Component and Class L-1 Component, the
Distribution Date occurring in October 2007; (ii) with respect to the Class A-2B
Component, Class G-1 Component, Class H Component, Class J Component, Class K
Component and Class L-2 Component, the Distribution Date occurring in October
2008; (iii) with respect to the Class A-2C Component, Class E-1 Component, Class
F Component and Class G-2 Component, the Distribution Date occurring in October
2009; (iv) with respect to the Class A-2D Component, Class A-ABA Component,
Class A-3 Component, Class D-1 Component and Class E-2 Component, the
Distribution Date occurring in October 2010; (v) with respect to the Class A-4A
Component, Class B-1 Component, Class A-ABB Component, Class C Component and
Class D-2 Component, the Distribution Date occurring in October 2011; (vi) with
respect to the Class A-4B Component and Class B-2 Component, the Distribution
Date occurring in October 2012; and (vii) with respect to the Class A-4C
Component, Class A-M Component, Class A-J Component and Class B-3 Component, the
Distribution Date occurring in October 2013.
"Class X-2 Components" means each of the Class A-1B Component,
Class A-2A Component, Class A-2B Component, Class A-2C Component, Class A-2D
Component, Class A-3 Component, Class A-ABA Component, Class A-ABB Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class A-M
Component, Class A-J Component, Class B-1 Component, Class B-2 Component, Class
B-3 Component, Class C Component, Class D-1 Component, Class D-2 Component,
Class E-1 Component, Class E-2 Component, Class F Component, Class G-1
Component, Class G-2 Component, Class H Component, Class J Component, Class K
Component, Class L-1 Component and Class L-2 Component, in each case, only as of
any date of determination on or prior to its respective Class X-2 Component
Crossover Date.
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"Class X-2 Notional Amount" means as of any date of
determination, the sum of the then Component Notional Amounts of the Class X-2
Components that have not passed their respective Class X-2 Component Crossover
Dates.
"Class X-2 Strip Rate" means, with respect to each of the Class
X-2 Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class X-2 Component
Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum
corresponding to such Distribution Date as set forth in Schedule IX attached
hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass Through Rate for the Class of Corresponding
Certificates (provided that, in no event shall any Class X-2 Strip Rate be less
than zero), and (ii) for any Distribution Date occurring after the related Class
X-2 Component Crossover Date, 0% per annum.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, which initially shall be
the Depository.
"Clearstream Bank" means Clearstream Bank, societe anonyme.
"Closing Date" means October 31, 2006.
"CMSA" means the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers, the
placement agent and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Paying
Agent, the Special Servicer, the Primary Servicer and the majority
certificateholder of the Controlling Class.
"CMSA Advance Recovery Report" means a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" means a report which
is one element of the CMSA Methodology for Analyzing and Reporting Property
Income Statements and which is substantially in the form of Exhibit N.
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"CMSA Reports" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"Code" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"Collection Period" means, with respect to any Distribution Date,
the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"Commission" means the U.S. Securities and Exchange Commission.
"Compensating Interest" means with respect to any Distribution
Date, an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of all 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, 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 including any B Note,
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage Loan), plus
any investment income earned on the amount prepaid prior to such Distribution
Date. For the avoidance of doubt, no Repurchased Loan shall be included as a
Mortgage Loan for purposes of computing the amount of Compensating Interest.
"Component" means any of the Class A-1A Component, Class A-1B
Component, the Class A-2A Component, the Class A-2B Component, the Class A-2C
Component, the Class A-2D Component, the Class A-3 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 A-M Component, the Class A-J
Component, the Class B-1 Component, the Class B-2 Component, the Class B-3
Component, the Class C Component, the Class D-1 Component, the Class D-2
Component, the Class E-1 Component, the Class E-2 Component, the Class F
Component, the Class G-1 Component, the Class G-2 Component, the Class H
Component, the Class J Component, the Class K Component, the Class L-1
Component, the Class L-2 Component, the Class M Component, the Class N
Component, the Class O Component and the Class P Component.
"Component Notional Amount" means with respect to each Component
and any date of determination, an amount equal to the then Certificate Balance
of its Corresponding REMIC II Regular Interest.
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"Condemnation Proceeds" means any awards resulting from the full
or partial condemnation or any eminent domain proceeding or any conveyance in
lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental authority or private entity with
condemnation powers other than amounts to be applied to the restoration,
preservation or repair of such Mortgaged Property or released to the related
Mortgagor in accordance with the terms of the Mortgage Loan and (if applicable)
its related B Note or Serviced Companion Mortgage Loan. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Condemnation
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage or A Note, as applicable, shall be included
in Condemnation Proceeds.
"Controlling Class" means the most subordinate Class of REMIC
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 P Certificates.
"Controlling Person" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the Securities Act.
"Corporate Trust Office" means, with respect to the presentment
and surrender of Certificates for the final distribution thereon or the
presentment and surrender of Certificates for any other purpose, the principal
corporate trust office of the Certificate Registrar. The principal corporate
trust office of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Global Securities and Trust Services
-- Bear Xxxxxxx Commercial Mortgage Securities Inc., Series 2006-TOP24 and the
office of the Certificate Registrar is presently located for certificate
transfer purposes at Xxxxx Fargo Center, Sixth Street and Marquette Avenue, MAC
#N9303-121, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust
Services (CMBS) -- Bear Xxxxxxx Commercial Mortgage Securities Inc., Series
2006-TOP24, and for all other purposes at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) -- Bear Xxxxxxx
Commercial Mortgage Securities Inc., Series 2006-TOP24, or at such other address
as the Trustee or Certificate Registrar may designate from time to time by
notice to the Certificateholders, the Depositor, the Master Servicer, the Paying
Agent and the Special Servicer.
"Corresponding Certificate" means the Class of Certificates as
set forth in the Preliminary Statement with respect to any Corresponding
Component or any Corresponding REMIC II Regular Interest.
"Corresponding Component" means the Component as set forth in the
Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding REMIC II Regular Interest.
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"Corresponding REMIC I Regular Interest" means, with respect to
each Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"Corresponding REMIC II Regular Interest" means the REMIC II
Regular Interest as defined in the Preliminary Statement with respect to any
Class of Corresponding Certificates or any Corresponding Component.
"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.
"Customer" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Cut-Off Date" means the end of business on October 1, 2006. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on October 1, 2006, and
Scheduled Payments due in October 2006 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on October 1,
2006, not the actual day on which such Scheduled Payments were due.
"Debt Service Coverage Ratio" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T, whether or not the Mortgage Loan has an interest-only period that has
not expired as of the Cut-Off Date.
"Debt Service Reduction Amount" means, with respect to a Due Date
and the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"Defaulted Mortgage Loan" means a Mortgage Loan or Serviced
Companion Mortgage Loan that is in default under the terms of the applicable
Mortgage Loan documentation and for which any applicable grace period has
expired.
"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
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Mortgage Loan, Serviced Companion Mortgage Loan or B Note to require the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Defective Mortgage Loan" has the meaning set forth in Section
2.3(a).
"Deficient Valuation" means, with respect to any Mortgage Loan
(other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage
Loan or any Loan Pair, a valuation by a court of competent jurisdiction of the
Mortgaged Property (or, with respect to a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the pro rata portion of the valuation
allocable to such Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage
Loan, as applicable) relating to such Mortgage Loan, A/B Mortgage Loan or Loan
Pair in an amount less than the then outstanding indebtedness under such
Mortgage Loan, A/B Mortgage Loan or Loan Pair, which valuation results from a
proceeding initiated under the United States Bankruptcy Code, as amended from
time to time, and that reduces the amount the Mortgagor is required to pay under
such Mortgage Loan, A/B Mortgage Loan or Loan Pair.
"Deficient Valuation Amount" means (i) with respect to each
Mortgage Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any
A/B Mortgage Loan or any Loan Pair, the amount by which the total amount due
with respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
"Definitive Certificates" means Certificates of any Class issued
in definitive, fully registered, certificated form without interest coupons.
"Deleted Mortgage Loan" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
"Depositor" means Bear Xxxxxxx Commercial Mortgage Securities
Inc., a Delaware corporation, and its successors in interest.
"Depository" has the meaning set forth in Section 3.7(a).
"Depository Agreement" means the Letter of Representations dated
the Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"Determination Date" means, with respect to any Distribution
Date, the earlier of (i) the 7th day of the month in which such Distribution
Date occurs or, if such day is not a Business Day, the immediately preceding
Business Day, and (ii) the 5th Business Day prior to the related Distribution
Date, commencing November 3, 2006.
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"Directly Operate" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"Discount Rate" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless a different term methodology or source is otherwise set forth in
the Mortgage Loan documents, is the yield calculated by the linear interpolation
of the yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity date (or the
Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"Disqualified Organization" means any of (i) the United States,
any State or any political subdivision thereof, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest" means, with respect to any
Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest in
respect of such Class or Classes or Interest, reduced (to not less than zero) by
(i) any Net Aggregate Prepayment Interest Shortfalls for such Class or Classes
of Certificates or Interests, allocated on such Distribution Date to such Class
or Classes or Interest pursuant to Section 6.7, and (ii) Realized Losses
allocated on such Distribution Date to reduce the Distributable Certificate
Interest payable to such Class or Classes or Interest pursuant
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to Section 6.6, plus (B) the Unpaid Interest, plus (C) if the Aggregate
Certificate Balance is reduced because of a diversion of principal in accordance
with Section 5.2(a)(II)(iv), and there is a subsequent recovery of amounts as
set forth in Section 6.6(c)(i), then interest at the applicable Pass-Through
Rate that would have accrued and been distributable with respect to the amount
that the Aggregate Certificate Balance was so reduced, which interest shall
accrue from the date that the related Realized Loss is allocated through the end
of the Interest Accrual Period related to the Distribution Date on which such
amounts are subsequently recovered.
"Distribution Account" means the Distribution Account maintained
by the Paying Agent on behalf of the Trustee, in accordance with the provisions
of Section 5.3, which account shall be an Eligible Account.
"Distribution Date" means the 12th day of each month or, if such
day is not a Business Day, the next succeeding Business Day, commencing November
13, 2006.
"Due Date" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
"XXXXX" means the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" means an account (or accounts) that is any of
the following: (i) maintained with a depository institution or trust company
whose (A) commercial paper, short-term unsecured debt obligations or other
short-term deposits are rated at least "P-1" by Moody's and "F-1" by Fitch, if
the deposits are to be held in the account for 30 days or less, or (B) long-term
unsecured debt obligations are rated at xxxxx "X0" by Moody's and at least "AA-"
by Fitch (or "A-" by Fitch so long as the short-term unsecured debt obligations
are rated not less than "F-1" by Fitch), if the deposits are to be held in the
account more than 30 days or (ii) a segregated trust account or accounts
maintained in the trust department of the Trustee, the Paying Agent or other
financial institution having a combined capital and surplus of at least
$50,000,000 and subject to regulations regarding fiduciary funds on deposit
similar to Title 12 of the Code of Federal Regulations Section 9.10(b) and whose
long-term senior unsecured debt obligations or other long-term deposits, or, in
the case of the Trustee, the Trustee's parent's long-term senior unsecured debt
obligations or other long-term deposits, are rated at least "Baa3" by Moody's,
or (iii) an account or accounts of a depository institution acceptable to each
Rating Agency, as evidenced by Rating Agency Confirmation with respect to the
use of any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank, National Association, a wholly-owned subsidiary of Xxxxx Fargo & Co.,
provided that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "P-1" in
the case of Moody's, and "F-1" in the case of Fitch, if the deposits are to be
held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "Aa2" in the case of Moody's and at least "A+" in
the case of Fitch, if the deposits are to be held in the account for more than
30 days.
"Eligible Investments" means any one or more of the following
financial assets or other property:
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(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "F-1" by Fitch and "Prime-1" by Moody's or the long-term
unsecured debt obligations of such depository institution or trust company have
been assigned a rating by each Rating Agency at least equal "AA" by Fitch and
"Aa2" by Moody's or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as set
forth in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1" by Fitch and "Prime-1" by Moody's (or for which Rating Agency Confirmation
is obtained with respect to such ratings);
(vi) units of investment funds (including money market
funds) that are rated in the highest long-term category by Fitch, or if not
rated by Fitch, then Fitch has issued a
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Rating Agency Confirmation, and the highest long-term category by Moody's, or if
not rated by Moody's, then Moody's has issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365
days or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and "Aa2" by Moody's (if rated by Fitch or, if not rated by Fitch, by
Moody's and another nationally recognized statistical rating organization), or
for which Rating Agency Confirmation is obtained with respect to such ratings;
(viii) any money market funds (including those managed or
advised by the Paying Agent or its affiliates) that maintain a constant asset
value and that are rated "Aaa" (or its equivalent rating) by Moody's and "AAA"
(or its equivalent rating) by Fitch (if so rated by Fitch), and any other
demand, money-market or time deposit, or any other obligation, security or
investment, with respect to which Rating Agency Confirmation has been obtained;
and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible 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
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in respect of such Mortgage Loan, Mortgaged Property or REO Property, as the
case may be, for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmental Laws" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Account" means an account established by or on behalf of
the Master Servicer pursuant to Section 8.3(e).
"Escrow Amount" means any amount payable with respect to a
Mortgage Loan (including an A/B Mortgage Loan) for taxes, assessments, water
rates, Standard Hazard Insurance Policy premiums, ground lease payments,
reserves for capital improvements, deferred maintenance, repairs, tenant
improvements, leasing commissions, rental achievements, environmental matters
and other reserves or comparable items.
"Euroclear Bank" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear system.
"Event of Default" has the meaning set forth in Section 8.28(a).
"Excess Interest" means, with respect to an ARD Loan if 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 is
an asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"Excess Interest Sub-account" means an administrative account
deemed to be a sub-account of the Distribution Account. 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
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Loan, a Principal Prepayment in full had been made with respect to both the
related A Note and B Note, or, in the case of an REO Property related to a Loan
Pair, a Principal Prepayment in full had been made with respect to both the
Serviced Pari Passu Mortgage Loan and the Serviced Companion Mortgage Loan) on
the date such proceeds were received plus accrued and unpaid interest with
respect to such Mortgage Loan and any and all expenses (including Additional
Trust Expenses and Unliquidated Advances) with respect to such Mortgage Loan. In
the case of a Serviced Pari Passu Mortgage Loan, Excess Liquidation Proceeds
means only the pro rata share of such proceeds that are allocated to the Trust.
"Excess Servicing Fee" means, with respect to the Mortgage Loans
or the Serviced Companion Mortgage Loans for which an "excess servicing fee
rate" is designated on the Mortgage Loan Schedule, the monthly fee payable to
Xxxxx Fargo Bank, National Association or its successors and assigns as holder
of excess servicing rights, which fee shall accrue on the Scheduled Principal
Balance of each such Mortgage Loan immediately prior to the Due Date occurring
in each month at the per annum rate (determined in the same manner as the
applicable Mortgage Rate for such Mortgage Loan is determined for such month)
specified on the Mortgage Loan Schedule (the "Excess Servicing Fee Rate"). The
holder of excess servicing rights is entitled to Excess Servicing Fees only with
respect to the Mortgage Loans or Serviced Companion Mortgage Loans as indicated
on Exhibit J hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
"Exchange Certification" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"Exemption" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation of asset pool
investment trusts granted by the United States Department of Labor to the
Underwriters, as amended.
"Expense Loss" means a loss realized upon payment by the Trust of
an Additional Trust Expense.
"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 State ment hereto.
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"Final Recovery Determination" means a determination with respect
to any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special Servicer in consultation with the
Operating Adviser and the Master Servicer (including a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that became an REO Property), in each case,
in its good faith discretion, consistent with the Servicing Standard, that all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase
Proceeds and other payments or recoveries that the Special Servicer expects to
be finally recoverable on such Mortgage Loan, Serviced Companion Mortgage Loan
or B Note, without regard to any obligation of the Master Servicer, the Special
Servicer or the Trustee, as the case may be, to make payments from its own funds
pursuant to Article IV hereof, have been recovered. The Special Servicer shall
be required to provide the Master Servicer with prompt written notice of any
Final Recovery Determination with respect to any Specially Serviced Mortgage
Loan upon making such determination. The Master Servicer shall notify the
Trustee and the Paying Agent of such determination and the Paying Agent shall
deliver a copy of such notice to each Rating Agency.
"Final Scheduled Distribution Date" means, for each Class of
rated Certificates, the Distribution Date on which such Class would be paid in
full if payments were made on the Mortgage Loans in accordance with their terms,
except that ARD Loans are assumed to be repaid on their Anticipated Repayment
Dates.
"Financial Market Publishers" means Xxxxx, LLC and Intex
Solutions, Inc., or any successor entities thereof.
"Fitch" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Form 8-K Disclosure Information" has the meaning set forth in
Section 13.7.
"Free Writing Prospectus" has the meaning set forth in the
Preliminary Statement hereto.
"Global Certificate" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"Grantor Trust Pool" means the segregated pool of assets
designated as the "Class P Grantor Trust" pursuant to Section 12.5 hereof.
"Holder" means the Person in whose name a Certificate is
registered on the Certificate Register.
"IAI Definitive Certificate" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"Independent" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange
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Commission's Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any Affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any Affiliate of
such other Person, (C) is not connected with such other Person or any Affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a member
of the immediate family of a Person defined in clause (B) or (C) above.
"Independent Contractor" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in such Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the
Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which
shall be at the expense of the Person delivering such opinion to the Trustee, to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Initial Certification" has the meaning set forth in Section 2.2.
"Initial Deposit" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"Initial Review Period" has the meaning set forth in Section
9.4(d).
"Inspection Report" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"Institutional Accredited Investor" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the Securities Act.
"Insured Environmental Event" has the meaning set forth in
Section 9.1(f).
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"Insurance Policies" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"Insurance Proceeds" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"Intercreditor Agreement" means, with respect to an A/B Mortgage
Loan, the related intercreditor agreement by and between the holder of the
related A Note(s) and the holder of the related B Note relating to the relative
rights of such holders of the respective A Note(s) and B Note, as the same may
be further amended from time to time in accordance with the terms thereof.
"Interest" means a REMIC I Interest 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 Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"Interest Reserve Amount" has the meaning set forth in Section
5.1(d).
"Interest Reserve Loans" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"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,
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whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"Late Fee" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan, Serviced Companion Mortgage
Loan or the related B Note in connection with a late payment made by such
Mortgagor. References in this Agreement to Late Fees and default interest in
respect of any Loan Pair or in respect of any Non-Serviced Mortgage Loan and its
related Non-Serviced Companion Mortgage Loan shall mean only the portion thereof
that is received by the Trust in accordance with the applicable Loan Pair
Intercreditor Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement.
Notwithstanding anything to the contrary in this Agreement, Late Fees relating,
and allocated, to any B Note in accordance with the related Intercreditor
Agreement (after being first applied to Advance Interest) shall be payable to
the Holder of the related B Note in accordance with the related Intercreditor
Agreement.
"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 from liquidation or (iii) advanced by the Master
Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"Liquidation Fee" means a fee equal to the product of (x) 1.0%
and (y) the Liquidation Proceeds received in connection with a final disposition
of a Specially Serviced Mortgage Loan or REO Property or portion thereof and any
Condemnation Proceeds and Insurance Proceeds received by the Trust (net of any
expenses incurred by the Special Servicer on behalf of the Trust in connection
with the collection of such Condemnation Proceeds and Insurance Proceeds) other
than Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds received
in connection with any Non-Serviced Mortgage Loan. For the avoidance of doubt, a
Liquidation Fee will be payable in connection with a repurchase of an A Note by
the holder of the related B Note unless otherwise provided in the related
Intercreditor Agreement.
"Liquidation Proceeds" means proceeds from the sale or
liquidation (provided that for the purposes of calculating Liquidation Fees
hereunder, Liquidation Proceeds shall not include any proceeds from a repurchase
of a Mortgage Loan by a Seller due to a Material Breach of a representation or
warranty or Material Document Defect) of a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note or related REO Property, net of Liquidation Expenses.
With respect to the mortgaged property or properties securing any Non-Serviced
Mortgage Loan or Non-Serviced Companion Mortgage Loan, only the portion of such
amounts payable to the holder of the related Non-Serviced Mortgage Loan will be
included in Liquidation Proceeds, and with respect to the mortgaged property or
properties securing any Loan Pair or A/B Mortgage Loan, only an allocable
portion of such Liquidation Proceeds will be distributable to the
Certificateholders.
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"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
other liquidation or REO Disposition has occurred, an amount equal to the sum,
without duplication, of (A) the Principal Balance (as increased by any
Unliquidated Advance with respect to such Mortgage Loan) of the Mortgage Loan
(or such deemed Principal Balance, in the case of an REO Mortgage Loan) as of
the date of the Cash Liquidation, or other liquidation or REO Disposition
(adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid interest and
interest accrued thereon at the applicable Mortgage Rate (including interest
accrued and unpaid on the portion of the Principal Balance added in accordance
with Section 6.6(c)(i), which interest shall accrue from the date of the
reduction in the Principal Balance resulting from the allocation of a Realized
Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses (including
Additional Trust Expenses, 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 other liquidation or REO Disposition occurred and which are not
required under any Intercreditor Agreement, any Loan Pair Intercreditor
Agreement or Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or
reimbursable to any holder of a B Note, a Serviced Companion Mortgage Loan or a
Non-Serviced Companion Mortgage Loan. REO Income and Liquidation Proceeds shall
be applied first to reimburse the Master Servicer, the Special Servicer and the
Trustee as applicable, to the extent that Section 5.2(a)(I) otherwise entitles
such party to reimbursement, for any Nonrecoverable Advance with respect to the
related Mortgage Loan, and then for all Workout-Delayed Reimbursement Amounts
with respect to such related Mortgage Loan (but not any such amount that has
become Unliquidated Advances), and any remaining REO Income and Liquidation
Proceeds and any Condemnation Proceeds and Insurance Proceeds shall be applied
first against any Additional Trust Expenses (to the extent not included in the
definition of Liquidation Expenses) for such Mortgage Loan, next as a recovery
of any Nonrecoverable Advance (and interest thereon) with respect to such
Mortgage Loan previously paid from principal collections pursuant to Section
5.2(a)(II), next to any Unliquidated Advances with respect to such Mortgage
Loan, next to the unpaid interest on the Mortgage Loan, calculated as set forth
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as set forth in clause (A) above.
"Loan 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
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Mortgaged Property as shown on the most recent Appraisal or valuation of the
Mortgaged Property which is available as of such date or, in the case of any
Non-Serviced Mortgage Loan or Loan Pair, the allocable portion thereof.
"Lock-Box Account" has the meaning set forth in Section 8.3(g).
"Lock-Box Agreement" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Master Servicer (or the Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"Losses" has the meaning set forth in Section 12.4.
"Luxembourg Paying Agent" has the meaning set forth in Section
7.18.
"Luxembourg Transfer Agent" has the meaning set forth in Section
7.18.
"MAI" means Member of the Appraisal Institute.
"Master Servicer" means Xxxxx Fargo Bank, National Association
and its permitted successors or assigns.
"Master Servicer Consent Matters" has the meaning set forth in
Section 8.3(a).
"Master Servicer Indemnified Parties" has the meaning set forth
in Section 8.25(a).
"Master Servicer Losses" has the meaning set forth in Section
8.25(a).
"Master Servicer Remittance Date" means, for each Distribution
Date, the Business Day immediately preceding such Distribution Date.
"Master Servicer Remittance Report" means a report prepared by
the Master Servicer and in such media as may be agreed upon by the Master
Servicer and the Paying Agent containing such information regarding the Mortgage
Loans as will permit the Paying Agent to calculate the amounts to be distributed
to the Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"Master Servicing Fee" means for each calendar month, as to each
Mortgage Loan, Serviced Companion Mortgage Loan and B Note (including REO
Mortgage Loans and Defeasance Loans) but not as to any Non-Serviced Mortgage
Loan (as to which there is no Master Servicing Fee payable to the Master
Servicer under this Trust), an amount equal to the Master Servicing Fee Rate
applicable to such month (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note
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immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c).
"Master Servicing Fee Rate" means, with respect to each Mortgage
Loan Serviced Companion Mortgage Loan and B Note (including any Mortgage Loan
relating to an REO Property), the rate per annum specified as such on the
Mortgage Loan Schedule. With respect to a Non-Serviced Mortgage Loan, except as
provided for on the Mortgage Loan Schedule, no Master Servicing Fee Rate is
charged by the Master Servicer, but the Pari Passu Loan Servicing Fee Rate is
charged by the applicable Non-Serviced Mortgage Loan Master Servicer pursuant to
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"Material Breach" has the meaning set forth in Section 2.3(a).
"Material Document Defect" has the meaning set forth in Section
2.3(a).
"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, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note other than a Specially Serviced Mortgage Loan or
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).
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"Monthly Certificateholders Report" means a report provided
pursuant to Section 5.4 by the Paying Agent monthly as of the related
Determination Date generally in the form and substance of Exhibit M, which sets
forth, to the extent applicable: (i) the date of such Distribution Date, and of
the Record Date, Interest Accrual Period, and Determination Date for such
Distribution Date; (ii) the Available Distribution Amount for the Distribution
Date, and any other cash flows received on the Mortgage Loans and applied to pay
fees and expenses (including the components of the Available Distribution Amount
or such other cash flows); (iii) the aggregate amount of servicing fees, Special
Servicing Fees, other special servicing compensation and Trustee Fees paid to
the Master Servicer, the Primary Servicer, the Special Servicer, the holders of
the rights to Excess Servicing Fees, the Trustee and the Paying Agent with
respect to the Mortgage Loans; (iv) the amount of other fees and expenses
accrued and paid from the Trust, including without limitation Advance
reimbursement and interest on Advances, and specifying the purpose of such fees
or expenses and the party receiving payment of those amounts, if applicable; (v)
the amount, if any, of such distributions to the Holders of each Class of
Principal Balance Certificates applied to reduce the respective Certificate
Balances thereof; (vi) the amount of such distribution to holders of each Class
of Certificates allocable to (A) interest accrued (including Excess Interest) at
the respective Pass-Through Rates, less any Net Aggregate Prepayment Interest
Shortfalls and (B) Prepayment Premiums; (vii) the amount of any shortfall in
principal distributions and any shortfall in interest distributions to each
applicable Class of Certificates; (viii) the amount of excess cash flow, if any
distributed to the holder of the Residual Certificates; (ix) the aggregate
Certificate Balance or Notional Amount of each Class of Certificates before and
after giving effect to the distribution made on such Distribution Date; (x) the
Pass-Through Rate applicable to each Class of Certificates for such Distribution
Date; (xi) the Weighted Average Mortgage Rate (and interest rates by
distributional groups or ranges) of the Mortgage Loans as of the related
Determination Date; (xii) the number of outstanding Mortgage Loans and the
aggregate Principal Balance and Scheduled Principal Balance of the Mortgage
Loans and the weighted average remaining term at the close of business on such
Determination Date, with respect to the Mortgage Loans; (xiii) the number and
aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59
days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which
foreclosure proceedings have been commenced, or (E) as to which bankruptcy
proceedings have been commenced; (xiv) the aggregate amount and general purpose
of Servicing Advances and P&I Advances outstanding, separately stated, that have
been made by the Master Servicer, the Special Servicer and the Trustee with
respect to the Mortgage Loans and the aggregate amount and general purpose of
Servicing Advances and P&I Advances made by the applicable Non-Serviced Mortgage
Loan Master Servicer in respect of the Non-Serviced Mortgage Loans; (xv) the
number and related Principal Balances of any Mortgage Loans modified, extended
or waived on a loan-by-loan basis since the previous Determination Date
(including a description of any modifications, extensions or waivers to mortgage
loan terms, fees, penalties or payments during the distribution period as
provided to the Paying Agent); (xvi) with respect to any REO Property included
in the Trust, the Principal Balance of the related Mortgage Loan as of the date
of acquisition of the REO Property and the Scheduled Principal Balance thereof;
(xvii) as of the related Determination Date (A) as to any REO Property sold
during the related Collection Period, the date of the related determination by
the Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate
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Account, in each case identifying such REO Property by the loan number of the
related Mortgage Loan; (xviii) the aggregate amount of Principal Prepayments
made during the related Collection Period with respect to the Mortgage Loans;
(xix) the amount of Unpaid Interest and Realized Losses, if any, incurred with
respect to the Mortgage Loans, including a breakout by type of such Realized
Losses with respect to the Mortgage Loans; (xx) any Material Breaches of
Mortgage Loan representations and warranties of which the Trustee, the Master
Servicer or the Special Servicer has received written notice; and (xxi) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date (and in the case of the Non-Serviced Mortgage Loans, the
amount of any appraisal reductions effected under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement). In the case of information
furnished pursuant to subclauses (v), (vi) and (ix) above, the amounts shall be
expressed in the aggregate and as a dollar amount per $1,000 of original
principal amount of the Certificates for all Certificates of each applicable
Class.
"Moody's" means Xxxxx'x Investors Service Inc. or its successor
in interest.
"Mortgage" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"Mortgage File" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit with a copy of the Mortgage Note attached
thereto;
(ii) the original Mortgage, with evidence of recording thereon,
and, if the Mortgage was executed pursuant to a power of attorney, a certified
true copy of the power of attorney certified by the public recorder's office,
with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 45th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Seller shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the 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, or if such original modification,
consolidation or extension agreements have been delivered to the appropriate
recording office for recordation and either have not yet been returned
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on or prior to the 45th day following the Closing Date with evidence of
recordation thereon or have been lost after recordation, true copies of such
modifications, consolidations or extensions certified by the applicable Seller
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
modification, consolidation or extension agreement has been dispatched or sent
to the appropriate public recording official for recordation or (B) in the case
of an original modification, consolidation or extension agreement that has been
lost after recordation, a certification by the appropriate county recording
office where such document is recorded that such copy is a true and complete
copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan,
in form and substance acceptable for recording, signed by the holder of record
in blank or in favor of "LaSalle Bank National Association, as Trustee for Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24"; 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 shall deliver to the Master Servicer and the Special Servicer
evidence confirming that the Trustee is shown as the owner on the record of
MERS, 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 applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned on or prior to the 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
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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 Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24," 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 shall deliver to the Master
Servicer and the Special Servicer evidence confirming that the Trustee is shown
as the owner on the record of MERS, 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 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 shall deliver to the Master Servicer and the
Special Servicer evidence confirming that the Trustee is shown as the owner on
the record of MERS, 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 and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note) 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 Primary Servicer (or the Master
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Servicer), and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, this Agreement and the
Primary Servicing Agreement or (B) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan, which shall be
held by the Primary Servicer (or the Master Servicer) on behalf of the Trustee,
with a copy to be held by the Trustee, and applied, drawn, reduced or released
in accordance with documents evidencing or securing the applicable Mortgage
Loan, this Agreement and the Primary Servicing Agreement (it being understood
that each Seller has agreed (a) that the proceeds of such letter of credit
belong to the Trust, (b) to notify, on or before the Closing Date, the bank
issuing the letter of credit that the letter of credit and the proceeds thereof
belong to the Trust, and to use reasonable efforts to obtain within 30 days (but
in any event to obtain within 90 days) following the Closing Date, an
acknowledgement thereof by the bank (with a copy of such acknowledgement to be
sent to the Trustee) or a reissued letter of credit and (c) to indemnify the
Trust for any liabilities, charges, costs, fees or other expenses accruing from
the failure of the Seller to assign all rights in and to the letter of credit
hereunder including the right and power to draw on the letter of credit). In the
case of clause (B) above, the Primary Servicer (and 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 Primary Servicer (or Master Servicer) sells
its rights to service the applicable Mortgage Loan, the Primary Servicer (or
Master Servicer) will assign the applicable letter of credit to the Trust or at
the direction of the Special Servicer (with respect to any Specially Serviced
Mortgage Loan) to such party as the Special Servicer may instruct, in each case,
at the expense of the Primary Servicer (or Master Servicer). The Primary
Servicer (or 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
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Mortgage Loan) but with respect to (i) any A/B Mortgage Loan, shall include the
A Note (but shall not include the related B Note) and (ii) any Loan Pair, shall
include the Serviced Pari Passu Mortgage Loan (but shall not include the related
Serviced Companion Mortgage Loan).
"Mortgage Loan Purchase Agreement" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III or Mortgage Loan Purchase Agreement IV, as the case may be.
"Mortgage Loan Purchase Agreement I" means that certain Mortgage
Loan Purchase Agreement between BSCMI and the Depositor dated as of October 18,
2006 with respect to the BSCMI Loans, a form of which is attached hereto as
Exhibit K-1.
"Mortgage Loan Purchase Agreement II" means that certain Mortgage
Loan Purchase Agreement between Xxxxx Fargo and the Depositor dated as of
October 18, 2006 with respect to the Xxxxx Fargo Loans, a form of which is
attached hereto as Exhibit K-2.
"Mortgage Loan Purchase Agreement III" means that certain
Mortgage Loan Purchase Agreement between Principal II and the Depositor dated as
of October 18, 2006 with respect to the Principal Loans, a form of which is
attached hereto as Exhibit K-3.
"Mortgage Loan Purchase Agreement IV" means that certain Mortgage
Loan Purchase Agreement between MSMC and the Depositor dated as of October 18,
2006 with respect to the MSMC Loans, a form of which is attached hereto as
Exhibit K-4.
"Mortgage Loan Schedule" or "Loan Schedule" means collectively
the schedule attached hereto as Schedule I, which identifies each BSCMI Loan,
the schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo
Loan, the schedule attached hereto as Schedule III, which identifies each
Principal II Loan and the schedule attached hereto as Schedule IV, which
identifies each MSMC Loan, as such schedules may be amended from time to time
pursuant to Section 2.3.
"Mortgage Note" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"Mortgage Rate" means, for a given Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the per annum rate at which interest accrues
on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"Mortgaged Property" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion Mortgage
Loan.
"Mortgagee" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"Mortgagor" means the obligor on a Mortgage Note.
"MSMC" has the meaning set forth in the Preliminary Statement
hereto.
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"MSMC Loans" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"Net Aggregate Prepayment Interest Shortfall" means for any
Distribution Date, 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.
"Nondisqualification Opinion" means a written Opinion of Counsel
to the effect that a contemplated action (i) will neither cause any REMIC Pool
to fail to qualify as a REMIC at any time that any Certificates are outstanding
nor cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and
(ii) will not cause the Class P Grantor Trust to fail to qualify as a grantor
trust.
"Noneconomic Residual Interest" means a residual interest that is
a "noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"Non-Investment Grade Certificates" means each Class of
Certificates that, at the time of transfer, is not rated in one of the four
highest generic rating categories by at least one of the Rating Agencies.
"Nonrecoverable Advance" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued thereon at the
Advance Rate) and (ii) the portion of any Advance (including interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including interest
thereon) previously made (and, in the case of an Unliquidated Advance, not
previously reimbursed to the Trust) or proposed to be made by the Master
Servicer, the Special Servicer or the Trustee, that, in its respective sole
discretion, exercised in good faith and, with respect to the Master Servicer and
the Special Servicer, taking into account the Servicing Standard, will not be
or, in the case of a current delinquency, would not be, ultimately recoverable,
from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase
Proceeds (or from any other collections) with respect to the related Mortgage
Loan or Serviced Companion Mortgage Loan (and taking into consideration any
Crossed Mortgage Loans) (in the case of Servicing Advances) or B Note (in the
case of Servicing Advances) or REO Property (in the case of P&I Advances and
Servicing Advances), as evidenced by an Officer's Certificate delivered pursuant
to Section 4.4. Such Officer's Certificate shall be delivered to the Trustee
(upon which the Trustee may conclusively rely) or to the Depositor (if the
Trustee is delivering such Officer's Certificate) and (in either case) to the
Special Servicer and the Paying Agent in the time periods as specified in
Section 4.4 and shall include the information and reports set forth in Section
4.4. Absent bad faith, the Master Servicer's determination as to the
nonrecoverability of any Advance shall be conclusive and binding on the
Certificateholders and, in the case of any B Note or Serviced Companion Mortgage
Loan, the
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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 nonrecoverability of any advance made
with respect to any Non-Serviced Mortgage Loan by the Master Servicer or any
Other Master Servicer shall be conclusive and binding on the Certificateholders
and may, in all cases, be relied on by the Trustee and the Master Servicer. In
making any nonrecoverability determination as set forth above, the relevant
party shall be entitled (i) to consider (among other things) the obligations of
the Mortgagor under the terms of the Mortgage Loan as it may have been modified,
(ii) to consider (among other things) the related Mortgaged Properties in their
"as is" then-current conditions and occupancies and such party's assumptions
(consistent with the Servicing Standard in the case of the Master Servicer or
the Special Servicer) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the Master
Servicer or the Special Servicer (among other things), future expenses and (iv)
to estimate and consider, consistent with the Servicing Standard (among other
things), the timing of recovery to such party. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the Master Servicer
or the Special Servicer, update or change its nonrecoverability determinations
at any time in accordance with the terms hereof and may, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer,
obtain from the Special Servicer any analysis, appraisals or other information
in the possession of the Special Servicer for such purposes.
"Non-Registered Certificate" means unless and until registered
under the Securities Act, any Class X-1, Class X-2, Class 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 or Residual Certificate.
"Non-Serviced Companion Mortgage Loan" means a loan not included
in the Trust that is generally payable on a pari passu basis with the related
Non-Serviced Mortgage Loan. There are no Non-Serviced Companion Mortgage Loans
related to the Trust.
"Non-Serviced Mortgage Loan" means a Mortgage Loan included in
the Trust but serviced under another agreement. There are no Non-Serviced
Mortgage Loans in the Trust.
"Non-Serviced Mortgage Loan Fiscal Agent" means the applicable
"fiscal agent" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage Loan Intercreditor Agreement" means, the
applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
"Non-Serviced Mortgage Loan Master Servicer" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage Loan Mortgage" means the mortgage securing
a Non-Serviced Mortgage Loan.
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"Non-Serviced Mortgage Loan Paying Agent" means the applicable
"paying agent" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"Non-Serviced Mortgage Loan Pooling and Servicing Agreement"
means a pooling and servicing agreement under which a Non-Serviced Mortgage Loan
is serviced.
"Non-Serviced Mortgage Loan Special Servicer" means the
applicable "special servicer" under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement.
"Non-Serviced Mortgage Loan Trustee" means the applicable
"trustee" under the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement.
"Notional Amount" means, as of any date of determination: (i)
with respect to all of the Class X-1 Certificates as a Class, the Class X-1
Notional Amount as of such date of determination; (ii) with respect to any Class
X-1 Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"Officer's Certificate" means (u) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, (v) in the
case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (w) in the case of the
Trustee, a certificate signed by a Responsible Officer, (x) in the case of a
Seller, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, any Managing Director or Director, the President, or any
Executive Vice President, any Senior Vice President, Vice President, Second Vice
President or Assistant Vice President, (y) in the case of the Paying Agent, a
certificate signed by a Responsible Officer, each with specific responsibilities
for the matters contemplated by this Agreement; and (z) in the case of any other
Additional Servicer, a certificate signed by one or more of the Chairman of the
Board, any Vice Chairman, the President, or any Senior Vice President, Vice
President or Assistant Vice President or an employee thereof designated as a
Servicing Officer.
"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 (other than, except as provided
herein, any right to replace the Special Servicer or appoint a successor special
servicer, or the ability to direct or restrict foreclosure in violation of the
Servicing Standard, with respect to the related A/B Mortgage Loan) to the extent
such rights and powers relate to the related A/B Mortgage Loan (but only so long
as the holder of the related B Note is the directing holder or controlling
holder, as defined in the related Intercreditor Agreement). The initial
Operating Adviser will be ARCap REIT, Inc.
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"Opinion of Counsel" means a written opinion of counsel addressed
to the Trustee and the Paying Agent, reasonably acceptable in form and substance
to the Trustee and the Paying Agent, and who is not in-house counsel to the
party required to deliver such opinion but who, in the good faith judgment of
the Trustee and the Paying Agent, is Independent outside counsel knowledgeable
of the issues occurring in the practice of securitization with respect to any
such opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of any REMIC Pool or status as a "grantor trust" under the Code of the
Class P Grantor Trust.
"Option Purchase Price" has the meaning set forth in Section
9.36(b) hereof.
"Other Advance Report Date" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable,
which has been deposited into a commercial mortgage securitization trust, the
date under the related Other Companion Loan Pooling and Servicing Agreement that
the related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"Other Companion Loan Pooling and Servicing Agreement" means a
pooling and servicing agreement relating to a Non-Serviced Companion Mortgage
Loan or a Serviced Companion Mortgage Loan that creates a commercial mortgage
securitization trust, as applicable.
"Other Master Servicer" means the applicable 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.
"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
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related Collection Period, over any Late Collections received in respect of such
Balloon Payment during such Collection Period; and (iii) with respect to each
REO Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan related to such REO Property during the related
Collection Period, over remittances of REO Income to the Master Servicer by the
Special Servicer, reduced by any amounts required to be paid as taxes on such
REO Income (including taxes imposed pursuant to Section 860G(c) of the Code);
provided, however, that the interest portion of any Scheduled Payment or Assumed
Scheduled Payment shall be advanced at a per annum rate equal to the sum of the
REMIC I Net Mortgage Rate relating to such Mortgage Loan or such REO Mortgage
Loan and the Trustee Fee Rate, such that the Scheduled Payment or Assumed
Scheduled Payment to be advanced as a P&I Advance shall be net of the Master
Servicing Fee, the Excess Servicing Fee and the Primary Servicing Fee; and
provided, further, that the Scheduled Payment or Assumed Scheduled Payment for
any Mortgage Loan which has been modified shall be calculated based on its terms
as modified and provided, further, that the interest component of any P&I
Advance with respect to a Mortgage Loan as to which there has been an Appraisal
Reduction shall be an amount equal to the product of (i) the amount of interest
required to be advanced without giving effect to this proviso and (ii) a
fraction, the numerator of which is the Principal Balance of such Mortgage Loan
as of the immediately preceding Determination Date less any Appraisal Reduction
applicable to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage
Loan or a Serviced Pari Passu Mortgage Loan, the portion of such Appraisal
Reduction allocable (based upon their respective Principal Balances) to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan under the
related Intercreditor Agreement or the related Loan Pair Intercreditor
Agreement, or in the case of an A/B Mortgage Loan, the portion of such Appraisal
Reduction allocable to the A Note pursuant to the definition of "Appraisal
Reduction") and the denominator of which is the Principal Balance of such
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
"P&I Advance Amount" means, with respect to any Mortgage Loan or
any REO Property, the amount of the P&I Advance for each Mortgage Loan computed
for any Distribution Date.
"Pari Passu Loan Nonrecoverable Advance" means any
"Nonrecoverable Servicing Advance" (as defined in the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement) made with respect to any
Non-Serviced Mortgage Loan pursuant to and in accordance with the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement; provided that if the
applicable Non-Serviced Mortgage Loan Master Servicer shall have made a
"Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement) in the nature of an expenditure benefiting the
related Mortgaged Property generally, the portion thereof attributable to any
Non-Serviced Mortgage Loan shall be determined based on the outstanding balances
of such Non-Serviced Mortgage Loan and all the related pari passu loans secured
by such Non-Serviced Mortgage Loan Mortgage on a pari passu basis on the date
such advance was made.
"Pari Passu Loan Servicing Fee Rate" means the "Master Servicing
Fee Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan; provided, however, that
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the Pari Passu Loan Servicing Fee Rate for purposes of any Non-Serviced Mortgage
Loan set forth on Schedule XII as to which such fee is calculated on a 30/360
basis shall be (a) the related "Master Servicing Fee Rate" set forth in the
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, multiplied by (b) 30
divided by the actual number of days in the loan accrual period with respect to
such loan.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"Pass-Through Rate" or "Pass-Through Rates" means with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC
Regular Certificates, other than the Class X-1, Class X-2, Class G and Class H
Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter
(and with respect to the Class X-1, Class X-2, Class G and Class H Certificates,
for each Distribution Date), the Pass-Through Rates for (i) the REMIC I Regular
Interests shall equal the REMIC I Net Mortgage Rate on the related Mortgage Loan
for such Distribution Date, (ii) the REMIC II Regular Interests shall equal the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (iii) the
Class A-1, 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, (iv) the Class A-M Certificates shall equal the lesser of (A) 5.568% per
annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (v) the Class A-J Certificates shall equal the lesser of (A)
5.598% 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)
5.657% 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)
5.687% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (viii) the Class D Certificates shall equal the lesser of (A)
5.756% 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)
5.811% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (x) the Class F Certificates shall equal the lesser of (A)
5.940% per annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (xi) the Class G Certificates shall equal the the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date less 0.073%, (xii)
the Class H Certificates shall equal the the Weighted Average REMIC I Net
Mortgage Rate corresponding to such Class for such Distribution Date, (xiii) the
Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
shall equal the lesser of (A) 5.262% per annum and (B) the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (xiv) the Class X-1
Certificates shall equal the per annum rate equal to the weighted average of the
Class X-1 Strip Rates for the respective Class X-1 Components for such
Distribution Date (weighted on the basis of the respective Component Notional
Amounts of such Components outstanding immediately prior to such Distribution
Date), and (xv) the Class X-2 Certificates shall equal the per annum rate equal
to the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components for such Distribution Date (weighted on the basis of the
respective Component Notional Amount of such Components outstanding immediately
prior to such Distribution Date).
"Paying Agent" means Xxxxx Fargo Bank, National Association and
any successor or assign, as provided herein. The Luxembourg Paying Agent shall
not be the Paying
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Agent and the duties of the Luxembourg Paying Agent shall be distinct from the
duties of the Paying Agent.
"Paying Agent Fee" means the portion of the Trustee Fee payable
to the Paying Agent in an amount agreed to between the Trustee and the Paying
Agent.
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"Performing Party" has the meaning set forth in Section 13.12.
"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 Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated or its respective successor in interest.
"Plan" has the meaning set forth in Section 3.3(d).
"Planned Principal Balance" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XIII.
"Plan Asset Regulations" means the Department of Labor
regulations set forth in 29 C.F.R. ss. 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
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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 Primary 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 Primary Servicing Fee,
the Excess Servicing Fees, the Special Servicing Fee, the Trustee Fee and the
servicing fee payable in connection with any Non-Serviced Mortgage Loan (in the
case of any Non-Serviced Mortgage Loan)) over (B) the aggregate interest that
did so accrue through the date such payment was made (net of such fees).
"Prepayment Premium" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"Primary Collateral" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"Primary Servicer" means Principal Global Investors, LLC and its
permitted successors and assigns.
"Primary Servicing Agreement" means the agreement between the
Primary Servicer and the Master Servicer, dated as of October 1, 2006, a form of
which is attached hereto as Exhibit G-1, under which the Primary Servicer
services the Mortgage Loans set forth on the schedule attached thereto.
"Primary Servicing Fee" means, for each calendar month, as to
each Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
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"Primary Servicing Fee Rate" means, the monthly fee payable to
the Primary Servicer (or the Master Servicer, as applicable) based on the per
annum rate specified on the Mortgage Loan Schedule, as more specifically
described, in the case of the Primary Servicer, in the Primary Servicing
Agreement (determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month).
"Principal II" has the meaning set forth in the Preliminary
Statement hereto.
"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 October 2006 that is not October 1, 2006, that
principal and interest payments for such month were paid on October 1, 2006),
reduced (to not less than zero) by (i) any payments or other collections of
amounts allocable to principal with respect to such Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or any related REO Mortgage Loan that have been
collected or received during any preceding Collection Period, other than any
Scheduled Payments due in any subsequent Collection Period, and (ii) any
Realized Principal Loss incurred in respect of such Mortgage Loan or related REO
Mortgage Loan during any related Collection Period.
"Principal Balance Certificates" means, collectively, the Class
A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates.
"Principal Distribution Amount" means, on any Distribution Date,
the amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
(i) the principal portion of all Scheduled Payments (other
than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments, in each case, to the extent received or
advanced, as the case may be, in respect of the Mortgage Loans
and any REO Mortgage Loans (but not in respect of any Serviced
Companion Mortgage Loan or B Note or its successor REO Mortgage
Loan) for their respective Due Dates occurring during the related
Collection Period; plus
(ii) all payments (including Principal Prepayments and the
principal portion of Balloon Payments but not in respect of any
Serviced Companion Mortgage Loan or B Note or its respective
successor REO Mortgage Loan) and any other collections (including
Liquidation Proceeds (other than the portion thereof, if any,
constituting Excess Liquidation Proceeds), Condemnation
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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, and which are applied pursuant to
Section 6.6(c)(i); 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 II Loans" means, collectively, those Mortgage Loans
sold to the Depositor pursuant to the Mortgage Loan Purchase Agreement III and
shown on Schedule III hereto.
"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 October 18, 2006 pursuant to which the Class X-1, Class X-2,
Class B, Class C, Class D,
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Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class P will be offered for sale.
"Prohibited Party" means (i) a Person that is a proposed
Servicing Function Participant that the Master Servicer, any Primary Servicer,
the Paying Agent, the Special Servicer or the Trustee, as applicable, seeks to
retain as a Servicing Function Participant and that the Master Servicer, any
Primary Servicer, the Paying Agent, the Special Servicer or the Trustee, as
applicable, has actual knowledge failed on any prior date to comply with its
Exchange Act or Regulation AB obligations with respect to the Trust or any other
commercial mortgage securitization or (ii) any Person identified in writing
(delivered prior to the date of retention) by the Depositor to the Master
Servicer, any Primary Servicer, the Paying Agent, the Special Servicer or the
Trustee, as applicable, as a Person that the Depositor has knowledge has failed
on any prior date to comply with its Exchange Act or Regulation AB obligations
with respect to the Trust or any other commercial mortgage securitization.
"Prospectus" has the meaning set forth in the Preliminary
Statement hereto.
"Prospectus Supplement" has the meaning set forth in the
Preliminary Statement hereto.
"Purchase Price" means, with respect to the purchase by the
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 Loans pursuant to Section 5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are reimbursable or payable to the
Master Servicer, the Special Servicer, the Paying Agent, the Trustee, any
Non-Serviced Mortgage Loan Master Servicer or any Non-Serviced Mortgage Loan
Special Servicer, plus (D) if such Mortgage Loan or REO Mortgage Loan is being
repurchased or substituted for by a Seller pursuant to the related Mortgage Loan
Purchase Agreement, all expenses reasonably incurred or to be incurred by the
Primary Servicer, the Master Servicer, the Special Servicer, the Depositor, the
Paying Agent or the Trustee in respect of the Material Breach or Material
Document Defect giving rise to the repurchase or substitution obligation (and
that are not otherwise included in (C) above).
"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
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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 as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person).
"Qualified Institutional Buyer" means a qualified institutional
buyer qualifying pursuant to Rule 144A.
"Qualified Insurer" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch or if not so rated, then Fitch has issued a Rating Agency
Confirmation and "A2" by Moody's if rated by Moody's or if not rated by Moody's,
then Moody's has issued a Rating Agency Confirmation, and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability no lower than "A" by Fitch if
rated by Fitch, or if not rated by Fitch, then rated A:IX by A.M. Best or as to
which Fitch has issued a Rating Agency Confirmation, and "A2" by Moody's if
rated by Moody's or if not rated by Moody's, then Moody's has issued a Rating
Agency Confirmation, or (iii) in either case, a company not satisfying clause
(i) or (ii) but with respect to which a Rating Agency Confirmation is obtained.
"Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"Qualifying Substitute Mortgage Loan" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the Certificate Account, and shall be
treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not greater than, and not 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
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and warranties relating to Mortgage Loans set forth herein, as of the date of
substitution; (vi) has a Phase I Environmental Report relating to the related
Mortgaged Property in its Mortgage Files and such Phase I Environmental Report
does not, in the good faith reasonable judgment of the Special Servicer,
consistent with the Servicing Standard, raise material issues that have not been
adequately addressed; (vii) has an engineering report relating to the related
Mortgaged Property in its Mortgage Files and such engineering report does not,
in the good faith reasonable judgment of the Special Servicer, consistent with
the Servicing Standard raise material issues that have not been adequately
addressed; and (viii) as to which the Trustee and the Paying Agent have received
an Opinion of Counsel, at the related Seller's expense, that such Mortgage Loan
is a "qualified replacement mortgage" within the meaning of Section 860G(a)(4)
of the Code; provided that no Mortgage Loan may have a Maturity Date after the
date three years prior to the Rated Final Distribution Date, and provided,
further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage
Loan unless Rating Agency Confirmation is obtained, and provided, further that
no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless
the Operating Adviser shall have approved of such substitution (provided,
however, that such approval of the Operating Adviser may not be unreasonably
withheld). In the event that either one mortgage loan is substituted for more
than one Deleted Mortgage Loan or more than one mortgage loan is substituted for
one or more Deleted Mortgage Loans, then (A) the Principal Balance referred to
in clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (ii) above and the remaining
term to stated maturity referred to in clause (iii) above shall be determined on
a weighted average basis (provided, that the REMIC I Net Mortgage Rate for any
Qualifying Substitute Mortgage Loan may not be less than the highest
Pass-Through Rate of any outstanding Class of Certificates that is not based on,
or subject to a cap equal to, the Weighted Average REMIC I Net Mortgage Rate).
Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted
Mortgage Loan pursuant to this Agreement, the party effecting such substitution
shall certify that such Mortgage Loan meets all of the requirements of this
definition and shall send such certification to the Paying Agent, which shall
deliver a copy of such certification to the Special Servicer, the Trustee and
the Operating Adviser promptly, and in any event within five Business Days
following the Paying Agent's receipt of such certification.
"Rated Final Distribution Date" means with respect to each rated
Class of Certificates, the Distribution Date in October 2041.
"Rating Agencies" means Fitch and Xxxxx'x.
"Rating Agency Confirmation" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed 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
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the Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to accrued
interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an
Expense Loss resulting in any period from the payment of the Special Servicing
Fee and any Expense Losses treated as Realized Interest Losses pursuant to
clause (iv) of the definition of "Realized Principal Loss" or (iv) in the case
of a Modification Loss, a Modification Loss described in clause (iii) of the
definition thereof.
"Realized Loss" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
"Realized Principal Loss" means, with respect to each Mortgage
Loan, (i) in the case of a Liquidation Realized Loss, the amount of such
Liquidation Realized Loss, to the extent that it does not exceed the Principal
Balance (plus the amount of any Unliquidated Advance with respect to such
Mortgage Loan) of the Mortgage Loan (or deemed Principal Balance, in the case of
REO Property), (ii) in the case of a Modification Loss, the amount of such
Modification Loss described in clause (i) of the definition thereof, (iii) in
the case of a Bankruptcy Loss, the portion of such Bankruptcy Loss attributable
to the reduction in the Principal Balance of the related Mortgage Loan, (iv) in
the case of an Expense Loss, the amount of such Expense Loss (other than Expense
Losses resulting from the payment of Special Servicing Fees) to the extent that
such Expense Loss does not exceed amounts collected in respect of the Mortgage
Loans that were identified as allocable to principal in the Collection Period in
which such Expense Losses were incurred, and any such excess shall be treated as
a Realized Interest Loss, (v) the amounts in respect thereof that are withdrawn
from the Certificate Account pursuant to Section 6.6(b)(i) and (vi) any
Unliquidated Advance that is determined by the Master 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.
"Registered Certificates" has the meaning set forth in the
Preliminary Statement hereto.
"Regulation AB" means Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
"Regulation S" means Regulation S under the Securities Act.
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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.
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect to the Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the
Trustee, on Schedule XIV attached hereto). For clarification purposes, multiple
Reporting Servicers can have responsibility for the same Relevant Servicing
Criteria and some of the Servicing Criteria will not be applicable to certain
Reporting Servicers. With respect to a Servicing Function Participant engaged by
the Trustee, the Master Servicer, the Special Servicer, the Primary Servicer,
the Paying Agent or any Sub-Servicer, the term "Relevant Servicing Criteria" may
refer to a portion of the Relevant Servicing Criteria applicable to the Trustee,
the Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent or such Sub-Servicer.
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"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
with respect thereto as shall from time to time be held in the Collection
Account, the Certificate Account, the Reserve Account, the Distribution Account
(other than the portion thereof constituting the Excess Interest Sub-account)
and the Interest Reserve Account, the Insurance Policies (other than the
interests of the holder of any Non-Serviced Companion Mortgage Loan or Serviced
Companion Mortgage Loan or B Note therein) and any REO Properties or beneficial
interests therein (other than the interests of the holder of any Non-Serviced
Companion Mortgage Loan or any Serviced Companion Mortgage Loan or B Note
therein), for which a REMIC election has been 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 formed hereunder. The Non-Serviced Companion Mortgage Loans and any
amounts payable thereon shall not constitute assets of the Trust or any REMIC
Pool formed hereunder. No B Note or any amounts payable thereon shall constitute
an asset of the Trust or any REMIC Pool formed hereunder. No Serviced Companion
Mortgage Loan or any amounts payable thereon shall constitute an asset of the
Trust or any REMIC Pool formed hereunder.
"REMIC I Interests" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I Net Mortgage Rate" means with respect to any
Distribution Date:
(i) as to any REMIC I Regular Interest, a rate per annum equal to
(a) with respect to any Mortgage Loan that accrues interest on the basis of a
360-day year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the
Mortgage Rate thereof (without taking into account any increase therein after
the Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above and assuming an interest accrual
basis that is the same as the actual interest accrual basis of such Mortgage
Loan, provided that for purposes of this clause (b) (i) the REMIC I Net Mortgage
Rate for the loan accrual period relating to the Due Dates in both January
(commencing in 2007) and February (commencing in 2007) in any year that is not a
leap year and in February in any year that is a leap year, shall be determined
net of any amounts transferred to the Interest Reserve Account; and (ii) the
REMIC I Net Mortgage Rate for the loan accrual period relating to the Due Date
in March (commencing in 2007) and the loan accrual period relating to the Due
Date related to the final Distribution Date shall be determined taking into
account the addition of any amounts withdrawn from the Interest Reserve Account.
"REMIC I Regular Interests" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I, which
shall consist of, with respect to each
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Mortgage Loan, an interest having an initial Certificate Balance equal to the
Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II Interests" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II Regular Interest A-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 $5,294,000, 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 $53,906,000, 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 $6,744,000, 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 $63,581,000, 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 $61,125,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest A-2D" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $41,780,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-3 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-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 $73,039,000, 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 $7,961,000, 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 $41,163,000, 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 $115,181,000, 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 $558,914,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest A-M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest B-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 $5,820,000, 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 $20,020,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest B-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $2,936,000, 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 C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest D-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $18,739,000, 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 $2,363,000, 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 $5,712,000, 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 $7,717,000, 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 $9,986,000, 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 $9,198,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance
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equal to the Aggregate Certificate Balance of the Class J Certificates, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II Regular Interest K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest L-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $2,716,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest L-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $3,039,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interest P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II Regular Interests" means, collectively, the REMIC II
Regular Interest A-1A, the REMIC II Regular Interest A-1B, the REMIC II Regular
Interest A-2A, the REMIC II Regular Interest A-2B, the REMIC II Regular Interest
A-2C, the REMIC II Regular Interest A-2D, the REMIC II Regular Interest A-3, the
REMIC II Regular Interest A-ABA, the REMIC II Regular Interest A-ABB, the REMIC
II Regular Interest A-4A, the REMIC II Regular Interest A-4B, the REMIC II
Regular Interest A-4C, the REMIC II Regular Interest A-M, the REMIC II Regular
Interest A-J, the REMIC II Regular Interest B-1, the REMIC II Regular Interest
B-2, the REMIC II Regular Interest B-3, the REMIC II Regular Interest C, the
REMIC II Regular Interest D-1, the REMIC II Regular Interest D-2, the REMIC II
Regular Interest E-1, the REMIC II Regular Interest E-2, the REMIC II Regular
Interest F, the REMIC II Regular Interest
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G-1, the REMIC II Regular Interest G-2, the REMIC II Regular Interest H, the
REMIC II Regular Interest J, the REMIC II Regular Interest K, the REMIC II
Regular Interest L-1, the REMIC II Regular Interest L-2, the REMIC II Regular
Interest M, the REMIC II Regular Interest N, the REMIC II Regular Interest O and
the REMIC II Regular Interest P.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III Certificates" has the meaning set forth in the
penultimate paragraph of the Preliminary Statement hereto.
"REMIC III Regular Interests" means, collectively, the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 Certificates, Class A-M 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 and the portion of the Class P
Certificates representing the Class P REMIC Interest that is a "regular
interest" in REMIC III.
"REMIC Pool" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC Regular Certificates" means, collectively, the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-M, Class A-J, Class X-1,
Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"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; provided
that a Mortgaged Property that secures a Non-Serviced Mortgage Loan shall
constitute an REO Property if and when it is acquired under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement for the benefit of
the Trustee as the holder of such Non-Serviced Mortgage Loan and of the holder
of the related Non-Serviced Companion Loan(s) through foreclosure, acceptance of
a deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in
connection with a default or otherwise treated as foreclosure property under the
REMIC Provisions. The Special Servicer shall not have any obligations with
respect to an REO Property that relates to a Mortgaged Property that secures a
Non-Serviced Mortgage Loan and all references to the Special Servicer's
obligations in this Agreement with respect to "REO Property" shall exclude any
such Mortgaged Property that secures a Non-Serviced Mortgage Loan.
"Report Date" means the third Business Day before the related
Distribution Date.
"Reportable Event" has the meaning set forth in Section 13.7.
"Reporting Servicer" means the Master Servicer, the Special
Servicer and any Servicing Function Participant (including the Primary Servicer,
the Paying Agent, the Trustee and each Sub-Servicer), as the case may be.
"Repurchased Loan" has the meaning set forth in Section 2.3(a).
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"Request for Release" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"Required Appraisal Loan" means any Mortgage Loan, Loan Pair or B
Note as to which an Appraisal Event has occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"Reserve Account" shall mean the Reserve Account maintained by
the Paying Agent in accordance with the provisions of Section 5.3, which shall
be an Eligible Account or a subaccount of an Eligible Account.
"Residual Certificates" means, with respect to REMIC I, the Class
R-I Certificates, with respect to REMIC II, the Class R-II Certificates and with
respect to REMIC III, the Class R-III Certificates.
"Responsible Officer" means, when used with respect to the
initial Trustee, any officer assigned to the Asset-Backed Securities Trust
Services Group, or with respect to the Paying Agent, any officer assigned to the
Corporate Trust Services Group, each with specific responsibilities for the
matters contemplated by this Agreement and when used with respect to any
successor Trustee or Paying Agent, any Vice President, Assistant Vice President,
corporate trust officer or any assistant corporate trust officer or persons
performing similar roles on behalf of the Trustee or Paying Agent.
"Restricted Servicer Reports" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a CMSA Comparative Financial Status Report; (ii) without
duplication with Section 8.14, 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 (viii) a realized loss report substantially in the form included
in Exhibit W.
"Reverse Sequential Order" means sequentially to the Class P,
Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C, Class B, Class A-J, Class A-M and finally to the
Class X and Class A Senior Certificates, on a pro rata basis, as set forth
herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A-IAI Global Certificate" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited
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Investors, a single, permanent global Certificate, in definitive, fully
registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"Xxxxxxxx-Xxxxx Act" means the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff).
"Xxxxxxxx-Xxxxx Certification" has the meaning set forth in
Section 13.6.
"Scheduled Payment" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"Scheduled Principal Balance" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note 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.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Seller" means Principal II, Xxxxx Fargo, BSCMI or MSMC as the
case may be.
"Seller Sub-Servicer" means a Sub-Servicer or Additional Servicer
required by a Seller to be retained by the Master Servicer or the Special
Servicer, as applicable, as listed on Schedule XIX hereto.
"Senior Certificates" means the Class A Senior and Class X
Certificates.
"Serviced Companion Mortgage Loan" means a mortgage loan that is
serviced under this Agreement, is not a "Mortgage Loan" included in the Trust,
but is paid on a pari passu basis with a Mortgage Loan included in the Trust.
The only Serviced Companion Mortgage Loan related to the Trust is the 000 Xxxxx
Xxxxx Xxxxxx Companion 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
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of the related Serviced Companion Mortgage Loan. Any such sub-account(s) shall
be maintained as a sub-account of an Eligible Account.
"Serviced Pari Passu Mortgage" means the Mortgage securing a
Serviced Pari Passu Mortgage Loan and its related Serviced Companion Mortgage
Loan secured by the related Mortgaged Property.
"Serviced Pari Passu Mortgage Loan" means a Mortgage Loan that is
included in the Trust and paid on a pari passu basis with a Serviced Companion
Mortgage Loan. The only Serviced Pari Passu Mortgage Loans in the Trust is the
000 Xxxxx Xxxxx Xxxxxx Pari Passu Loan.
"Service(s)(ing)" means, in accordance with Regulation AB, the
act of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"Servicer Errors and Omissions Insurance Policy" or "Errors and
Omissions Insurance Policy" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"Servicer Fidelity Bond" or "Fidelity Bond" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee or the Paying Agent, as the case may
be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, the Special Servicer's, the Trustee's or
the Paying Agent's, as the case may be, directors, officers or employees and is
maintained in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"Servicer Mortgage File" means copies of the mortgage documents
listed in the definition of "Mortgage File" relating to a Mortgage Loan and
shall also include, to the extent required to be (and actually) delivered to the
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.
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"Servicing Criteria" means the criteria set forth in paragraph
(d) of Item 1122 of Regulation AB, as such may be amended from time to time.
"Servicing Function Participant" means any Person (including the
Trustee, the Primary Servicer and the Paying Agent), other than the Master
Servicer and the Special Servicer, that, within the meaning of Item 1122 of
Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their Principal Balance).
"Servicing Officer" means, any officer or employee of the Master
Servicer, or an Additional Servicer, as the case may be, involved in, or
responsible for, the administration and servicing of the Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee by the Master Servicer, or an Additional Servicer, as the case may be,
and signed by an officer of the Master Servicer, or an Additional Servicer, as
the case may be, as such list may from time to time be amended.
"Servicing Standard" means, with respect to the Master Servicer
or the Special Servicer, as the case may be, to service and administer the
Mortgage Loans (and any Serviced Companion Mortgage Loan and B Note but not any
Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in 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 and the terms of the respective Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note (and, in the case of any Loan Pair or any
A Note and B Note, the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and
usual in its general mortgage servicing and REO property management activities
on behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and REO properties that are comparable to those for
which it is responsible hereunder;
(b) with a view to the timely collection of all Scheduled
Payments of principal and interest under the Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note or, if a Mortgage Loan, any Serviced
Companion Mortgage Loan or any B Note comes into and continues in default and
if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery of principal and interest on such
Mortgage Loan to the Certificateholders (as a collective whole) (or in the case
of any A/B Mortgage Loan and its related B Note or any Loan Pair, the
maximization of the recovery of principal and interest on such A/B Mortgage Loan
or Loan Pair, as applicable, to the Certificateholders and the holder of the
related B Note or Serviced Companion Mortgage Loan, as applicable, all taken as
a collective whole) on a net present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the rate determined by the
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Special Servicer but in any event not less than (i) the related REMIC I Net
Mortgage Rate, in the case of the Mortgage Loans (other than any A Note or
Serviced Pari Passu Mortgage Loan) or (ii) the weighted average of the mortgage
rates on the related A Note and B Note, in the case of any A/B Mortgage Loan,
and on the related Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan in the case of any Loan Pair); and without regard to: (I) any
other relationship that the Master Servicer or the Special Servicer, as the case
may be, or any Affiliate thereof may have with the related Mortgagor; (II) the
ownership of any Certificate or any interest in any Non-Serviced Companion
Mortgage Loan, Serviced Companion Mortgage Loan, B Note or any mezzanine loan
related to a Mortgage Loan by the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof; (III) the Master Servicer's
obligation to make Advances; (IV) the right of the Master Servicer (or any
Affiliate thereof) or the Special Servicer (or any Affiliate thereof), as the
case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (V) any obligation of the Master Servicer (or any Affiliate
thereof) to repurchase any Mortgage Loan from the Trust.
"Servicing Transfer Event" means the occurrence of any of the
following events: (i) 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, and the Master Servicer has determined, in its good faith
reasonable judgment in accordance with the Servicing Standard, that payment is
unlikely to be made on or before the 60th day succeeding the date the Balloon
Payment was due, or any other payment is more than 60 days past due or has not
been made on or before the second Due Date following the Due Date such payment
was due; (ii) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which, to the Master Servicer's
knowledge, the Mortgagor has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
Mortgagor or to all or substantially all of its property, or the Mortgagor has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged or
unstayed for a period of 30 days; (iii) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the Master Servicer shall have received notice of the foreclosure or
proposed foreclosure of any other lien on the Mortgaged Property; (iv) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Master Servicer 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
materially and adversely affects the interests of the Certificateholders or the
holder of any related Serviced Companion Mortgage Loan or B Note and which has
occurred and remains unremedied for the applicable grace period specified in
such Mortgage Loan (or, if no grace period is specified, 60 days); (v) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Mortgagor admits in writing its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the Master Servicer, (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
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days and such default, in the judgment of the Master Servicer, is reasonably
likely to materially and adversely affect the interests of the
Certificateholders or the holder of any related Serviced Companion Mortgage Loan
or B Note (as the case may be); provided, however, that (1) if the holder of the
B Note exercised its right to cure a monetary default and a monetary default
occurs in the following month due to the holder of the B Note's failure to cure,
then servicing of such Mortgage Loan shall be transferred to the Special
Servicer on the Business Day following the expiration of the Cure Period (as
defined in the related Intercreditor Agreement) of the holder of the B Note if
the holder of the B Note does not cure the current monetary default or (2) if
the holder of the B Note has exercised its right to cure the number of
consecutive monetary defaults it is permitted to cure under the related
Intercreditor Agreement and a monetary default occurs in the following month,
then servicing of such Mortgage Loan shall be transferred to the Special
Servicer at the expiration of the Mortgagor's grace period for the current
monetary default. If a Servicing Transfer Event occurs with respect to an A
Note, it shall be deemed to have occurred also with respect to its related B
Note; provided, however, that if a Servicing Transfer Event would otherwise have
occurred with respect to an A Note, but has not so occurred solely because the
holder of the related B Note has exercised its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such A/B Mortgage Loan. If a Servicing Transfer Event occurs with
respect to a B Note, it shall be deemed to have occurred also with respect to
its related A Note. If a Servicing Transfer Event occurs with respect to any
Serviced Pari Passu Mortgage Loan, it shall be deemed to have occurred also with
respect to the related Serviced Companion Mortgage Loan. If a Servicing Transfer
Event occurs with respect to any Serviced Companion Mortgage Loan, it shall be
deemed to have occurred also with respect to the related Serviced Pari Passu
Mortgage Loan. Under the applicable Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if a Servicing Transfer Event occurs with respect to any
Non-Serviced Companion Mortgage Loan, it shall be deemed to have occurred also
with respect to the related Non-Serviced Mortgage Loan.
"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.
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"Special Servicer" means ARCap Servicing, Inc., or any successor
Special Servicer as herein provided, including without limitation, any successor
Special Servicer appointed pursuant to Section 9.39 hereof.
"Special Servicer Compensation" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"Special Servicer Remittance Date" means the Business Day
preceding each Determination Date.
"Special Servicing Fee" means, for each calendar month, as to
each Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced
Companion Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan
(including REO Mortgage Loans), the fraction or portion of the Special Servicing
Fee Rate applicable to such month (determined using the same interest accrual
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for such month) multiplied by
the Scheduled Principal Balance of such Specially Serviced Mortgage Loan
immediately before the Due Date occurring in such month.
"Special Servicing Fee Rate" means 0.25% per annum.
"Special Servicing Officer" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and 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, the
Paying Agent and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan (and the related B Note in the case of an A/B Mortgage Loan, and
the related Serviced Companion Mortgage Loan in the case of a Loan Pair) has
become a Rehabilitated Mortgage Loan (and, in the case of an A Note (or B Note)
that is or was a Specially Serviced Mortgage Loan, its related B Note (or A
Note) has also become a Rehabilitated Mortgage Loan and, in the case of a
Serviced Pari Passu Mortgage Loan (or Serviced Companion Mortgage Loan) that is
or was a Specially Serviced Mortgage Loan, its related Serviced Companion
Mortgage Loan (or Serviced Pari Passu Mortgage Loan) has also become a
Rehabilitated Mortgage Loan), with respect to such Servicing Transfer Event,
unless and until the Master
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Servicer notifies the Special Servicer, the Paying Agent and the Trustee, in
accordance with Section 8.1(b) that another Servicing Transfer Event with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B Note exists
or occurs.
"Standard Hazard Insurance Policy" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"Startup Day" means, with respect to each of REMIC I, REMIC II
and REMIC III, the day designated as such in Section 12.1(b).
"Subcontractor" means any vendor, subcontractor or other Person
that is not responsible for the overall servicing of Mortgage Loans but performs
one or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"Subordinate Certificates" means, collectively, the Class A-M,
Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O and Class P Certificates.
"Sub-Servicer" means any Person that (i) is a Servicing Function
Participant, (ii) Services the assets of the Trust on behalf of (a) the Trust,
(b) the Paying Agent, (c) the Master Servicer, (d) the Special Servicer, (e) any
Additional Servicer (f) or any other Person that otherwise constitutes a
"Sub-Servicer", and (iii) is responsible for the performance (whether directly
or through sub-servicers or Subcontractors) of Servicing functions that are
required to be performed by the Trust, the Paying Agent, the Master Servicer,
the Special Servicer or any Additional Servicer under this Agreement or any
sub-servicing agreement and are identified in Item 1122(d) of Regulation AB.
"Successful Bidder" has the meaning set forth in Section 8.29(d).
"Tax Matters Person" means the person designated as the "tax
matters person" of each REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"10-K Filing Deadline" has the meaning set forth in Section 13.5.
"Termination Price" has the meaning set forth in Section 10.1(b).
"Title Insurance Policy" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of origination of
the related Mortgage Loan.
"Transfer" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
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"Transferor" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust" means the trust created pursuant to this Agreement, the
assets which consist of all the assets of REMIC I (including the Mortgage Loans
(other than Excess Interest), such amounts related thereto as shall from time to
time be held in the Certificate Account, the Distribution Account, the Reserve
Account, the Interest Reserve Account, the Insurance Policies, any REO
Properties or beneficial interests therein and other items referred to in
Section 2.1(a) hereof); REMIC II; REMIC III and funds or assets from time to
time on deposit in the Excess Interest Sub-account and any Excess Interest on
the Mortgage Loans. The Trust shall not include any Non-Serviced Companion
Mortgage Loan, any B Note, any interest of the holders of a B Note, any A/B Loan
Custodial Account, any Serviced Companion Mortgage Loan, any interest of the
holders of a Serviced Companion Mortgage Loan or any Serviced Companion Mortgage
Loan Custodial Account.
"Trustee" means LaSalle Bank National Association, as trustee, or
its successor-in-interest, or if any successor trustee or any co-trustee shall
be appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"Trustee Fee" means for each calendar month, as to each Mortgage
Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the
Trustee Fee Rate applicable to such month (determined using the same interest
accrual methodology (other than the rate of accrual) that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Scheduled Principal Balance of each such Mortgage Loan immediately before
the Due Date occurring in such month; provided that a portion of the Trustee Fee
agreed upon between the Trustee and the Paying Agent shall be applied to pay the
Paying Agent Fee.
"Trustee Fee Rate" means 0.00165% per annum (which includes the
Paying Agent Fee).
"Trustee Mortgage File" means the mortgage documents listed in
the definition of "Mortgage File" hereof pertaining to a particular Mortgage
Loan (and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Trustee Mortgage File" is used to refer to documents actually received by the
Trustee or a Custodian on its behalf, such terms shall not be deemed to include
such documents required to be included therein unless they are actually so
received.
"225 South Sixth Street Companion Loan" means, the loan that is
secured by the 000 Xxxxx Xxxxx Xxxxxx Pari Passu Mortgage on a pari passu basis
with the 000 Xxxxx Xxxxx Xxxxxx Pari Passu Loan and which is not included in the
Trust. The 000 Xxxxx Xxxxx Xxxxxx Companion Loan is not a "Mortgage Loan."
"225 South Sixth Street Loan Group" means, collectively, the 000
Xxxxx Xxxxx Xxxxxx Pari Passu Loan and the 000 Xxxxx Xxxxx Xxxxxx Companion
Loan.
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"225 South Sixth Street Pari Passu Loan" means, the Mortgage Loan
designated as Mortgage Loan No. 2 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the 000 Xxxxx Xxxxx Xxxxxx Companion Loan
secured by the related Mortgaged Property pursuant to the 000 Xxxxx Xxxxx Xxxxxx
Pari Passu Mortgage. The 000 Xxxxx Xxxxx Xxxxxx Pari Passu Loan is a "Mortgage
Loan."
"225 South Sixth Street Mortgage" means, the Mortgage securing
the 000 Xxxxx Xxxxx Xxxxxx Companion Loan and the 000 Xxxxx Xxxxx Xxxxxx Pari
Passu Loan.
"Underwriter" means each of Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated or its successors in interest.
"United States Tax Person" means any of (i) a citizen or resident
of the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"Unliquidated Advance" means any Advance previously made by a
party hereto that has been previously reimbursed to that party by the Trust as
part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of
Section 5.2(a)(II), but that has not been recovered from the Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"Unpaid Interest" means, on any Distribution Date with respect to
any Class of Interests or Certificates (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.
"Unrestricted Servicer Reports" means the following reports in
CMSA format (as in effect on the date hereof or as such formats may be changed
from time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (a) the following electronic files: (i) a Loan Setup File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an Historical
Liquidation Report, (iv) an REO Status Report, and (v) a CMSA Loan Level
Reserve/LOC Report.
"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.
"Xxxxx Fargo" has the meaning set forth in the Preliminary
Statement hereto.
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"Xxxxx Fargo Loans" means, collectively, those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown
on Schedule II hereto.
"Workout-Delayed Reimbursement Amount" has the meaning set forth
in subsection (II)(i) of Section 5.2(a).
"Work-Out Fee" means a fee payable with respect to any
Rehabilitated Mortgage Loan (other than any Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note, equal to the product of (x) 1.0% and
(y) the amount of each collection of interest (other than default interest and
any Excess Interest) and principal received (including any Condemnation Proceeds
received and applied as a collection of such interest and principal) on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note for so long as it
remains a Rehabilitated Mortgage Loan.
Section 1.2 Calculations Respecting Mortgage Loans.
(a) Calculations required to be made by the Paying Agent pursuant
to this Agreement with respect to any Mortgage Loan, Serviced Companion Mortgage
Loan or B Note shall be made based upon current information as to the terms of
such Mortgage Loan, Serviced Companion Mortgage Loan and B Note and reports of
payments received from the Master Servicer on such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note and payments to be made to the Paying Agent
as supplied to the Paying Agent by the Master Servicer. The Paying Agent shall
not be required to recompute, verify or recalculate the information supplied to
it by the Master Servicer and may conclusively rely upon such information in
making such calculations. If, however, a Responsible Officer of the Paying Agent
has actual knowledge of an error in the calculations, the Paying Agent shall
inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage
Loan, Serviced Companion Mortgage Loan or B Note documents (or the related
Intercreditor Agreement or related Loan Pair Intercreditor Agreement, as
applicable), or as otherwise provided for in the definition of Liquidation
Realized Loss, any amounts (other than escrow and reserve deposits and
reimbursements of lender advances and expenses) received in respect of a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as to which a
default has occurred and is continuing shall be applied first to overdue
interest due with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note at the Mortgage Rate thereof, next to current interest due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note to zero if such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note has been accelerated
and in respect of any scheduled payments of principal then due to the extent
that such Mortgage Loan, Serviced Companion Mortgage Loan or B Note has not yet
been accelerated, next to any default interest and other amounts due on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note and finally to Late
Fees due with respect to such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note. The foregoing allocations are intended to govern loan level allocations
but shall not govern allocations of such amounts at the trust level for the
purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
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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:
(a) For the ARD Loans, the Excess Interest accruing as a result
of the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay
the principal due on the Anticipated Repayment Date as specifically provided for
in the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but
not an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall
take any enforcement action with respect to the payment of Excess Interest on
any Mortgage Loan unless the taking of such action is consistent with the
Servicing Standard and all other amounts due
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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 or is no longer serviced pursuant to the terms of this Agreement, the
holder of such Serviced Pari Passu Mortgage Loan or B Note, as applicable, shall
negotiate one or more new servicing agreements with the Master Servicer and the
Special Servicer, provided that, prior to entering into any such new servicing
agreement, the new holder of such Serviced Pari Passu Mortgage Loan or B Note,
as applicable, shall obtain and provide to the holder of the related Serviced
Companion Mortgage Loan and/or B Note written confirmation from each rating
agency then rating any securitization relating to such Serviced Companion
Mortgage Loan and/or B Note providing that such new servicing agreement will not
result in the downgrade, qualification or withdrawal of its then-current ratings
of any securities issued in such securitization; provided, that prior to such
time the Master Servicer and the Special Servicer shall continue to service the
related Loan Pair and/or A/B Mortgage Loan to the extent provided in the related
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, as
applicable.
(b) For the avoidance of doubt and subject to subsection (a)
above, the parties acknowledge that the rights and duties of each of the Master
Servicer and the Special Servicer under Article VIII and Article IX and the
obligation of the Master Servicer to make Advances, insofar as such rights,
duties and obligations relate to any A/B Mortgage Loan (including both the
related A Note and the related B Note) or Loan Pair, shall terminate upon the
earliest to occur of the following with respect to such A/B Mortgage Loan or
Loan Pair, as the case may be: (i) any repurchase of or substitution for the
related A Note or Serviced Pari Passu Mortgage Loan 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
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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, the Trustee or the Paying
Agent, as applicable, primarily to the administration of the Trust or any REMIC
formed hereunder or to any determination respecting the amount, payment or
avoidance of any tax under the REMIC Provisions or the actual payment of any
REMIC tax or expense with respect to any REMIC formed hereunder, then such
expense shall not be allocated to, deducted or reimbursed from, or otherwise
charged against the holder of any Serviced Companion Mortgage Loan or B Note and
such holder shall not suffer any adverse consequences as a result of the payment
of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
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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 REMIC I for the benefit of REMIC II and REMIC III or the Class P Grantor
Trust for the benefit of the Class P 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 Loans to the
Trustee and the right to service such Mortgage Loans are subject to the terms
and conditions of the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement,
and the Trustee, by the execution and delivery of this Agreement, hereby agrees
that such Mortgage Loans remain subject to the terms of the related Non-Serviced
Mortgage Loan Intercreditor Agreement and, with respect to each Serviced Pari
Passu Mortgage Loan and Serviced Companion Mortgage Loan, the related Loan Pair
Intercreditor Agreement.
(b) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Paying Agent, any Custodian, 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
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assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of
the definition of "Mortgage File;" provided, if the related Mortgage and UCC
financing statements have been recorded in the name of MERS or its designee, no
such assignments will be required to be submitted for recording or filing and
instead, the applicable 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 promptly and properly registered with MERS
throughout the term of the related Mortgage Loan for so long as the Mortgage
Loan is an asset of the Trust.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreement in favor of the Trustee and the Special Servicer
to empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as set
forth in the preceding paragraph and any intervening assignments with evidence
of recording thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the Trustee).
The Sellers agree to reasonably cooperate with the Trustee and the Special
Servicer in connection with any additional powers of attorney or revisions
thereto that are requested by such parties for purposes of such recordation. The
Trustee and each other party hereto agrees that no such power of attorney shall
be used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the related Seller, but in no event earlier than 18
months from the Closing Date, and (ii) the date (if any) on which such Mortgage
Loan becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the related Seller's expense, after the periods set
forth above; provided, however, the Trustee shall not submit such assignments
for recording if
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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 or the Primary Servicer on its behalf, on or
before the date that is 45 days following the Closing Date and shall be held by
the Master Servicer or the Primary Servicer on behalf of the Trustee in trust
for the benefit of the Certificateholders. To the extent delivered to the Master
Servicer or the Primary 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 the Primary Servicer (or sub-servicer) shall be deemed
delivery to the Master Servicer and satisfy the Depositor's obligations under
this Section 2.1(d). None of the Master Servicer, the Special Servicer or the
Primary Servicer shall have any liability for the absence of any of the
foregoing items from the Servicing Mortgage File if such item was not delivered
by the related Seller.
(e) In connection with the Depositor's assignment pursuant to
Section 2.1(a) above, the Depositor shall deliver to the Trustee 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
Principal II Loans from Principal II, the Xxxxx Fargo Loans from Xxxxx Fargo,
the BSCMI Loans from BSCMI and the MSMC Loans from MSMC. The Depositor will
deliver or cause to be delivered the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as set forth in the
definition of "Mortgage File") relating to the Principal II 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 with copies of the related
Mortgage Notes, as set forth in
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the definition of "Mortgage File") relating to the Xxxxx Fargo Loans to the
Trustee, endorsed as otherwise provided herein, to effect the transfer to the
Trustee of such Mortgage Notes and all related deeds of trust, mortgages and
other loan documents. The Depositor will deliver or cause to be delivered the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as set forth in the definition of "Mortgage File") relating to
the BSCMI 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 with copies
of the related Mortgage Notes, as set forth in the definition of "Mortgage
File") relating to the MSMC Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording of multiple assignment documents, Principal II, Xxxxx
Fargo, BSCMI and MSMC, 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 Principal II Loans shall be deemed to have been
transferred from Principal II to the Depositor, the Xxxxx Fargo Loans shall be
deemed to have been transferred from Xxxxx Fargo to the Depositor, the BSCMI
Loans shall be deemed to have been transferred from BSCMI to the Depositor and
the MSMC Loans shall be deemed to have been transferred from MSMC to the
Depositor, and all Mortgage Loans shall be deemed to have been transferred from
the Depositor to the Trustee on behalf of the Certificateholders.
Section 2.2 Acceptance by Trustee. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders. 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 75 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 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 the
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Primary Servicing Agreement), and with respect to all documents specified in the
other clauses of the definition of "Mortgage File" to the extent known by a
Responsible Officer of the Trustee to be required pursuant to this Agreement,
are in its possession, and (II) for each Mortgage recorded in the name of MERS
or its designee, the Trustee is shown as the transferee of the related Mortgage
on the records of MERS for purposes of the system maintained by MERS of
recording transfers of beneficial ownership for mortgages, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, (C) based on its examination and only as to the Mortgage Note and
Mortgage, the street address of the Mortgaged Property set forth in the Mortgage
Loan Schedule respecting such Mortgage Loan accurately reflects the information
contained in the documents in the Mortgage File, and (D) each Mortgage Note has
been endorsed. Notwithstanding the foregoing, the delivery of a commitment to
issue a Title Insurance Policy in lieu of the delivery of the actual Title
Insurance Policy shall not be considered a Material Document Defect with respect
to any Mortgage File if such actual Title Insurance Policy is delivered to the
Trustee or a Custodian on its behalf not later than the 180th day following the
Closing Date.
Within 360 days after the Cut-Off Date, the Trustee shall provide
a confirmation of receipt of recorded assignments of Mortgage (as set forth in
the definition of "Mortgage File," with evidence of recording thereon) or
otherwise provide evidence of such recordation to the Master Servicer, the
Special Servicer, the Operating Adviser and 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
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filing, as to each Mortgage Loan, until the earliest of the following dates: (i)
the date on which all such exceptions are eliminated (any such elimination
resulting from the fact that recordation and/or filing has been completed shall
be based solely on receipt by the Custodian or the Trustee of the particular
documents showing evidence of the recordation and/or filing), (ii) the date on
which all the affected Mortgage Loans are removed from the Trust and (iii) the
second anniversary of the Closing Date, and shall provide such updated schedule
of exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the Master Servicer, the
Special Servicer, the Operating Adviser, the Paying Agent and the holder of any
Serviced Companion Mortgage Loan on or about the date that is 180 days after the
Closing Date and then again every 90 days thereafter (until the earliest date
specified above). Upon request, the Paying Agent shall promptly forward a copy
thereof to each Certificateholder in the Controlling Class and shall deliver or
make available a copy thereof to other Certificateholders. Promptly, and in any
event within two Business Days, following any request therefor by the Depositor,
the Master Servicer, the Special Servicer, the Operating Adviser or the holder
of any Serviced Companion Mortgage Loan that is made later than two years
following the Closing Date, the Custodian (or the Trustee) shall deliver an
updated schedule of exceptions, which may be in electronic format (to the extent
the prior schedule showed exceptions), to the requesting Person and the Paying
Agent, which shall make available a copy thereof. Upon request, the Master
Servicer shall provide to the Trustee the names and addresses of each holder of
a Serviced Companion Mortgage Loan of which the Master Servicer has received
notice in accordance with this Agreement and/or the related Loan Pair
Intercreditor Agreement.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and,
in either case, the party discovering such defect or breach determines that
either (i) the defect or breach materially and adversely affects the interests
of the holders of the Certificates in the related Mortgage Loan or (ii) both (A)
the defect or breach materially and adversely affects the value of the Mortgage
Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated Mortgage Loan (any such defect described in the preceding clause
(i) or (ii), a "Material Document Defect", and such a breach described in the
preceding clause (i) or (ii), a "Material Breach") the party determining that
such Material Document Defect or Material Breach exists shall give prompt
written notice to the other parties hereto and to each Rating Agency subject to
the terms of the applicable Mortgage Loan Purchase Agreement; provided that any
breach of the representation and warranty contained in paragraph (41) of Exhibit
2 of the related Mortgage Loan Purchase Agreement shall constitute a Material
Breach only if the prepayment premium or yield maintenance charge referred to
therein is not deemed "customary" for commercial mortgage loans as evidenced by
(i) an opinion of tax counsel to such effect or (ii) a determination by the
Internal Revenue Service that such provision is not customary. Promptly (but in
any event within three Business Days) upon determining (or becoming aware of
another party's determination) that any such Material Document Defect or
Material Breach exists (which
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determination shall, absent evidence to the contrary, be presumed to be no
earlier than three Business Days prior to the delivery of the notice referred to
below), 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 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 set forth in clause (ii) or clause (v) of the definition of
"Servicing Transfer Event" and (y) the Material Document Defect was identified
in a certification delivered to the Seller by the Trustee pursuant to Section
2.2 not less than 90 days prior to the delivery of the notice of such Material
Document Defect. The parties acknowledge that neither delivery of a
certification or schedule of exceptions to a Seller pursuant to Section 2.2 or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller or any party hereto of any Material
Document Defect listed therein.
If any Material Document Defect or Material Breach that exists
cannot be corrected or cured in all material respects within the above cure
periods, the 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
Regulations 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
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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 Custodian), the Paying
Agent and the Special Servicer. Upon such substitution, the Qualifying
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects. Upon receipt of the Trustee Mortgage File pertaining
to any Qualifying Substitute Mortgage Loans, the Trustee shall release the
Trustee Mortgage File relating to such Deleted Mortgage Loan to the 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 Crossed
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 Crossed 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
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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 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 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 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) or (d) the absence from the
Mortgage File of the item called for by paragraph (xii) of the definition of
"Mortgage File" (or with respect to any Non-Serviced Mortgage Loan, a copy
thereof). If any of the foregoing Material Document Defects is discovered by the
Custodian (or the Trustee if there is no Custodian), the Trustee (or as set
forth in Section 2.3(a), the Master Servicer) will take the steps described
elsewhere in this 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
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of the related Serviced Companion Mortgage Loan, and making demand upon the
related Seller for the cure of the document defect or repurchase or replacement
of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
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 set forth 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 set forth 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.
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The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer shall notify the related Seller of the
discovery of the Material Document Defect or Material Breach and the related
Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction issues
a final order after the expiration of any applicable appeal period that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan (a "Final Judicial Determination") or the related Seller
otherwise accepts liability, then, but in no event later than the termination of
the Trust pursuant to Section 9.30 hereof, the related Seller will be obligated
to pay to the Trust the difference between any Liquidation Proceeds received
upon such liquidation (including those arising from any sale to the related
Seller) and the Purchase Price.
Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or REO Property
as set forth in this Section 2.3, the Special Servicer shall not receive a
Liquidation Fee from the applicable Seller (but may collect such Liquidation Fee
from the related Liquidation Proceeds as otherwise provided herein); provided,
however, that in the event the applicable Seller is obligated to repurchase the
Mortgage Loan or REO Property after a final liquidation of such Mortgage Loan or
REO Property pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
the Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Property. Except as expressly set forth
above, no Liquidation Fee shall be payable in connection with a repurchase of a
Mortgage Loan by a Seller.
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, the Paying Agent and the
Master Servicer of such
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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 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) BSCMI, as Seller under Mortgage Loan
Purchase Agreement I, will be providing the remedies with respect to the BSCMI
Loans, (ii) Xxxxx Fargo, as Seller under Mortgage Loan Purchase Agreement II,
will be providing the remedies with respect to the Xxxxx Fargo Loans, (iii)
Principal II, as Seller under Mortgage Loan Purchase Agreement III, will be
providing the remedies with respect to the Principal II Loans and (iv) MSMC, as
Seller under Mortgage Loan Purchase Agreement IV, will be providing the remedies
with respect to the MSMC Loans.
(d) The Trustee or its designee (which, with the Master
Servicer's consent, may be the Master Servicer or which, with the Special
Servicer's consent, may be the Special Servicer) shall enforce the provisions of
this Section 2.3.
Section 2.4 Representations and Warranties. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust) and the Paying Agent as of the
Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power
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and authority to own its property, to carry on its business as presently
conducted, to enter into and perform its obligations under this Agreement, and
to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the
best of the Depositor's knowledge, threatened or likely to be asserted against
or affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
Section 2.5 Conveyance of Interests. Effective as of the Closing
Date, the Depositor does hereby transfer, assign, set over, deposit with and
otherwise convey to the Trustee, without recourse, in trust, all the right,
title and interest of the Depositor in and to (i) the REMIC I Regular Interests
in exchange for the REMIC II Certificates, (ii) the REMIC II Regular
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Interests in exchange for the REMIC III Certificates (other than the portion of
the Class P Certificates representing the right to Excess Interest) and (iii)
the right to receive Excess Interest in exchange for the Class P Grantor Trust
Interest.
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.
(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, the Class A-M Certificates
and the Class A-J Certificates will be issuable in denominations of $25,000
initial Certificate Balance and in any whole dollar denomination in excess
thereof. The Class X-1, Class X-2, Class B, Class C,
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Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates will be issuable in denominations of
$100,000 initial Certificate Balance or initial Notional Amount (as applicable)
or in any whole dollar denomination in excess thereof. The Class R-I, Class R-II
and Class R-III Certificates will be issued in minimum Percentage Interests of
10% and integral multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class X-1,
Class X-2, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates that are issued in book-entry form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Book-Entry Certificates that are issued to a Clearing Agency or its nominee as
provided in Section 3.7 against payment of the purchase price thereof. With
respect to the Class J, Class K, Class L, Class M, Class N, Class O and Class P
Certificates that are issued in definitive form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor shall authenticate
Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
Section 3.2 Registration. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
Section 3.3 Transfer and Exchange of Certificates.
(a) A Certificate may be transferred by the Holder thereof only
upon presentation and surrender of such Certificate at the Corporate Trust
Office, duly endorsed or accompanied by a written instrument of transfer duly
executed by such Holder or such Holder's duly authorized attorney in such form
as shall be satisfactory to the Certificate Registrar. Upon
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the transfer of any Certificate in accordance with the preceding sentence, and
subject to the restrictions set forth in the other subsections of this Section
3.3, the Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Non-Registered Certificate that constitutes a Book-Entry Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a
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transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Paying Agent, the Trustee, the Master
Servicer, the Special Servicer or the Certificate Registrar is obligated to
register or qualify any Class of Non-Registered Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Certificate. Any
Certificateholder or Certificate Owner desiring to effect a transfer of
Non-Registered Certificates or interests therein shall, and does hereby agree
to, indemnify the Depositor, each Underwriter, the Trustee, the Master Servicer,
the Special Servicer, the Paying Agent and the Certificate Registrar against any
liability that may result if the transfer is not exempt from such registration
or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Paying
Agent, the Master Servicer, the Special Servicer or the Certificate Registrar to
any obligation in addition to those undertaken in this Agreement. Each Person
who acquires any Non-Investment Grade Certificate or Residual Certificate or
interest therein (unless it shall have acquired such Certificate or interest
therein from the Depositor or an Affiliate thereof or unless, in the case of a
Non-Investment Grade Certificate, it shall have delivered to the Certificate
Registrar the certification of facts and Opinion of Counsel referred to in
clause (ii) of the preceding sentence) shall be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Non-Investment Grade
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with "plan assets" of a Plan; or (ii) that, in the case of a
Non-Investment Grade Certificate, the purchase and holding of such Certificate
or interest therein by such person qualifies for the exemptive relief available
under
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Sections I and III of PTCE 95-60 or another exemption from the "prohibited
transactions" rules under ERISA by the U.S. Department of Labor or similar
exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and a United States Tax Person and shall promptly
notify the Certificate Registrar of any change or impending
change in its status as a Permitted Transferee and (2) each
Person holding or acquiring any Ownership Interest in a Residual
Certificate shall be a Qualified Institutional Buyer and shall
promptly notify the Certificate Registrar of any change or
impending change in its status as a Qualified Institutional
Buyer.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and no Transfer of any
Residual Certificate shall be registered until the Certificate
Registrar receives, an affidavit and agreement substantially in
the form attached hereto as Exhibit E-1 (a "Transfer Affidavit
and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is a Qualified Institutional Buyer,
that it is not acquiring its Ownership Interest in the Residual
Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest
in a 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.
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(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United
States Tax Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer
Affidavit and Agreement from any prospective Transferee to whom
such Person attempts to transfer its Ownership Interest in such
Residual Certificate and (2) not to transfer its Ownership
Interest in such Residual Certificate unless it provides to the
Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit E-2 among other things stating that
(x) it has conducted a reasonable investigation of the financial
condition of the proposed Transferee and, as a result of the
investigation, the Transferor determines that the proposed
Transferee had historically paid its debts as they came due and
found no significant evidence that the proposed Transferee will
not continue to pay its debts as they come due in the future and,
(y) it has no actual knowledge that such prospective Transferee
is not a Permitted Transferee, is not a United States Tax Person,
is a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any United States
Tax Person or is a Person with respect to which income on the
Residual Certificate is attributable to a foreign permanent
establishment or fixed base, within the meaning of any applicable
income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate that is a "pass-through interest
holder" within the meaning of temporary Treasury Regulations
Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest
in a Residual Certificate on behalf of a "pass-through interest
holder", by purchasing an Ownership Interest in such Certificate,
agrees to give the Certificate Registrar written notice of its
status as such immediately upon holding or acquiring such
Ownership Interest in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 3.3(e) or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Tax
Person, then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 3.3(e) shall be restored, to the extent permitted by law,
to all rights and obligations as Holder thereof retroactive to
the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the
Special Servicer, the Certificate Registrar or the Paying Agent
shall be under any liability to any Person for any registration
of Transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(e) or for making any payments due
on such Certificate to the Holder thereof or for taking any other
action with respect to such Holder under the provisions of this
Agreement.
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(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 3.3(e), or if any Holder of a Residual Certificate shall
lose its status as a Permitted Transferee or a United States Tax
Person, and to the extent that the retroactive restoration of the
rights and obligations of the prior Holder of such Residual
Certificate as set forth in clause (F) above shall be invalid,
illegal or unenforceable, then the Trustee shall have the right,
without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell or cause to be sold
such Residual Certificate to a purchaser selected by the Trustee
on such terms as the Trustee may choose. Such noncomplying Holder
shall promptly endorse and deliver such Residual Certificate in
accordance with the instructions of the Certificate Registrar.
Such purchaser may be the Certificate Registrar itself or any
Affiliate of the Certificate Registrar. The proceeds of such
sale, net of the commissions (which may include commissions
payable to the Certificate Registrar or its Affiliates), expenses
and taxes due, if any, will be remitted by the Certificate
Registrar to such noncomplying Holder. The terms and conditions
of any sale under this clause (G) shall be determined in the sole
discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an Ownership
Interest in a Residual Certificate as a result of its exercise of
such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
The provisions of this Section 3.3(e) may be modified, added to
or eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition to
or elimination of such provisions will not cause any of REMIC I,
REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y)
be subject to an entity-level tax caused by the Transfer of any
Residual
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Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be
subject to a tax caused by the Transfer of a Residual Certificate
to a Person which is not a Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or the Certificate Registrar shall have any liability
to the Trust arising from a transfer of any Certificate in reliance upon a
certification, ruling or Opinion of Counsel described in this Section 3.3;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Certificates or any interest therein
imposed under this Article III or under applicable law other than to require
delivery of the certifications and/or opinions described in this Article III;
provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e). The Certificate Registrar shall have
no liability for transfers (including without limitation transfers made through
the book-entry facilities of the Depository or between or among Participants or
Certificate Owners) made in violation of applicable restrictions, provided that
the Certificate Registrar has satisfied its duties expressly set forth in
Sections 3.3(c), 3.3(d) and 3.3(e).
(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
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(B) except in the case of a mutilated Certificate so surrendered, there is
delivered to the Certificate Registrar such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Certificate Registrar shall execute, and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and interest in the Trust. In connection with the issuance of any new
Certificate under this Section 3.4, the Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section 3.4 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 3.5 Persons Deemed Owners. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Trustee, the Operating Adviser, the Paying Agent and any agent of
the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or the
Operating Adviser, may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Operating Adviser nor any agent of
the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Operating Adviser shall be affected by any notice to the contrary.
Section 3.6 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser, or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee 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-M, Class A-J, Class X, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates, upon original issuance, each shall be issued in the form of one
or more Certificates representing the Book-Entry Certificates, to be delivered
to the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided, that any
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Non-Investment Grade Certificates sold to Institutional Accredited Investors
that are not Qualified Institutional Buyers will be issued as Definitive
Certificates. The Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.9. Unless and until Definitive Certificates have
been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full
force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent,
the Certificate Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing 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 B, Class C, Class D, Class E, Class F, Class G and Class H Certificates
sold to Institutional Accredited Investors shall be represented by the Rule
144A-IAI Global Certificate for such Class, which shall be deposited with the
Certificate Registrar, as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. The Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates initially sold to
Institutional Accredited Investors 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.
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(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear Bank or Clearstream Bank; provided, however, that
such interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification requirements
described in Section 3.7(f). The Regulation S Permanent Global Certificates
shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
On or prior to the Release Date and on or prior to any
Distribution Date occurring prior to the Release Date, each Certificate Owner of
a Regulation S Temporary Global Certificate that holds a beneficial interest
therein on the Release Date or on any such Distribution Date, as the case may
be, must deliver to Euroclear Bank or Clearstream Bank (as applicable) a
Regulation S Certificate; provided, however, that any Certificate Owner that
holds a beneficial interest in a Regulation S Temporary Global Certificate on
the Release Date or on any such Distribution Date that has previously delivered
a Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to
its interest therein does not need to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, and such Certificate Owner must promptly notify Euroclear
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, as applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Certificate Registrar receiving such certification from Euroclear Bank or
Clearstream Bank with respect to the portion of the Regulation S Temporary
Global Certificate owned by such Certificate Owner (and, with respect to an
interest in the applicable Regulation S Permanent Global Certificate, prior to
the Release Date). After the Release Date, distributions due with respect to any
beneficial interest in a Regulation S Temporary Global Certificate shall not be
made to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global Certificate is
improperly withheld or refused. No interest in a Regulation S Global Certificate
may be held by or transferred to a U.S. Person (as defined in Regulation S)
except for exchanges for a beneficial interest in the Rule 144A-IAI Global
Certificate for such Class as set forth in Section 3.7(f).
(e) Except in the limited circumstances described below in
Section 3.9, owners of beneficial interests in Global Certificates shall not be
entitled to receive physical delivery of Definitive Certificates. The
Certificates are not issuable in bearer form. Upon the issuance of each Global
Certificate, the Depository or its custodian shall credit, on its internal
system, the respective principal amount of the individual beneficial interests
represented by such Global Certificate to the accounts of Persons who have
accounts with such Depository. Such accounts initially shall be designated by or
on behalf of the Underwriters and Placement Agents.
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Ownership of beneficial interests in a Global Certificate shall be limited to
Customers or Persons who hold interests directly or indirectly through
Customers. Ownership of beneficial interests in the Global Certificates shall be
shown on, and the transfer of that ownership shall be effected only through,
records maintained by the Depository or its nominee (with respect to interests
of Customers) and the records of Customers (with respect to interests of Persons
other than Customers).
So long as the Depository, or its nominee, is the registered
holder of a Global Certificate, the Depository or such nominee, as the case may
be, shall be considered the sole owner and holder of the Certificates
represented by such Global Certificate for all purposes under this Agreement and
the Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of such Global
Certificate registered in their names, will not receive or be entitled to
receive physical delivery of Definitive Certificates in certificated form and
shall not be considered the owners or holders of the Global Certificate (or any
Certificates represented thereby) under this Agreement or the Certificates. In
addition, no Certificate Owner of an interest in a Global Certificate shall be
able to transfer that interest except in accordance with the Depository's
applicable procedures (in addition to those under this Agreement and, if
applicable, those of Euroclear Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, Euroclear Bank or Clearstream Bank, as applicable, and the
Depository, in the form of an Exchange Certification (substantially in the form
of Exhibit H attached hereto), to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Rule 144A-IAI Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Rule 144A-IAI Global Certificate as set forth herein;
provided, however, that no Exchange Certification shall be required if any such
exchange occurs after the Release Date. Any holder of an interest in the Rule
144A-IAI Global Certificate shall have the right, upon prior written notice to
the Certificate Registrar, the Depository and Euroclear Bank or Clearstream
Bank, as applicable, in the form of an Exchange Certification, to exchange all
or a portion of such interest (in authorized denominations as set forth in
Section 3.1(b)) for an equivalent interest in the Regulation S Global
Certificate for such Class in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in such Regulation S Global
Certificate as set forth herein; provided, however, that if such exchange occurs
prior to the Release Date, the transferee shall acquire an interest in a
Regulation S Temporary Global Certificate only and shall be subject to all of
the restrictions associated therewith described in Section 3.7(d). Following
receipt of any Exchange Certification or request for transfer, as applicable, by
the Certificate Registrar: (i) the Certificate Registrar shall endorse the
schedule to any Global Certificate representing the Certificate or Certificates
being exchanged to reduce the stated principal amount of such Global Certificate
by the denominations of the Certificate or Certificates for which such exchange
is to be made, and (ii) the Certificate Registrar shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal amount of such
Global Certificate by the denominations of the Certificate or Certificates being
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exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
Section 3.8 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
Section 3.9 Definitive Certificates.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the Certificate Registrar in writing
that the Clearing Agency is unwilling or unable to continue as depositary for
such Global Certificate and a qualifying successor depositary is not appointed
by the Depositor within 90 days thereof, (ii) the Trustee has instituted or
caused to be instituted or has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under this
Agreement and under such Global Certificate and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or advisable for
the Trustee or its custodian to obtain possession of such Global Certificate, or
(iii) after the occurrence of an Event of Default, Certificate Owners
representing a majority in aggregate outstanding Certificate Balance of such
Global Certificate advise the Clearing Agency through the Participants in
writing (and the Clearing Agency so advises the Depositor, the Certificate
Registrar and the Master Servicer in writing) that the continuation in global
form of the Certificates being evidenced by such Global Certificate is no longer
in their best interests; provided, that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events described
in the preceding sentence, the Certificate Registrar shall notify the Clearing
Agency and request the Clearing Agency to notify all Certificate Owners, through
the applicable Participants, of the occurrence of the event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Global Certificates
by the Clearing Agency, accompanied by registration instructions from the
Clearing Agency for registration, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, the Definitive
Certificates. None of the Depositor, the Trustee, the Paying Agent or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided
herein by the Master Servicer and, if the Master Servicer does not make such
Advances, by the Trustee except to the extent that the Master Servicer or the
Trustee, as applicable, determines in accordance with Section 4.4 below, that
any such Advance would be a Nonrecoverable Advance.
Section 4.1 P&I Advances by Master Servicer.
(a) On or prior to the Advance Report Date, the Master Servicer
shall notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance in respect of each applicable 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 such
P&I Advance if made would be a Nonrecoverable Advance as determined by the
Special Servicer in accordance with the Servicing Standard, in which event the
Special Servicer shall promptly direct the Master Servicer not to make such P&I
Advance. 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
and the Paying Agent of such failure.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the related Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. Any
funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the Certificate Account on
such Master Servicer Remittance Date shall be less than payments to the Paying
Agent or other Persons required to be made on such date.
Section 4.1A P&I Advances with Respect to Non-Serviced Mortgage
Loans and Serviced Pari Passu Mortgage Loans.
With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the Master Servicer 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
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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. 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 unless the Master Servicer has consulted with the Other
Master Servicer and they both agree that circumstances with respect to such
Mortgage Loan have changed such that a proposed future P&I Advance would not be
a Nonrecoverable Advance. Notwithstanding the foregoing, the Master Servicer
shall continue to have the discretion provided in this Agreement to determine
that any future P&I Advance or outstanding P&I Advance would be, or is, as
applicable, a Nonrecoverable Advance. Once such a determination is made by the
Master Servicer or the Master Servicer receives written notice of such
determination by the Other Master Servicer, the Master Servicer shall follow the
process set forth in this paragraph before making any additional P&I Advances
with respect to such Mortgage Loan.
Following a securitization of a Serviced Companion Mortgage Loan,
the Master Servicer shall be required to deliver to the related Other Master
Servicer the following information: (i) any loan related information (in the
form received), including without limitation CMSA Reports relating to the
related Serviced Pari Passu Mortgage Loan, applicable to a determination that an
Advance is or would be a Nonrecoverable Advance, within one Business Day of the
Master Servicer's receipt thereof, (ii) notice of any Servicing Advance it, the
Trustee makes with respect to the related Serviced Pari Passu Mortgage Loan
within one Business Day of the making of such Advance and (iii) notice of any
determination that any Servicing Advance is a Nonrecoverable Advance within one
Business Day thereof.
Section 4.2 Servicing Advances. The Master Servicer and, if the
Master Servicer does not, the Trustee to the extent the Trustee receives written
notice from the Paying
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Agent that such Advance has not been made by the Master Servicer shall make
Servicing Advances to the extent provided in this Agreement, except to the
extent that the Master Servicer or the Trustee as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance and, subject to the last sentence of this Section 4.2,
except to the extent the Special Servicer determines in accordance with the
Servicing Standard and Section 4.4 that such Advance, if made, would be a
Nonrecoverable Advance, in which event the Special Servicer shall promptly
direct the Master Servicer not to make such Advance. Such determination by the
Master Servicer or the Special Servicer shall be conclusive and binding on the
Trustee and the Certificateholders and, in the case of any B Note, the holder of
the related B Note and, in the case of any Serviced Pari Passu Mortgage Loan,
the holder of the related Serviced Companion Mortgage Loan. The Special Servicer
shall not be required to make Servicing Advances under this Agreement but may
make such Servicing Advances at its option in which event the Master Servicer
shall reimburse the Special Servicer for such Servicing Advance within 30 days
of receipt of a statement therefor. Promptly after discovering that the Master
Servicer has failed to make a Servicing Advance that the Master Servicer is
required to make hereunder, the Paying Agent shall promptly notify the Trustee
in writing of the failure by the Master Servicer to make such Servicing Advance.
The Master Servicer may make Servicing Advances in its own discretion if it
determines that making such Servicing Advance is in the best interest of the
Certificateholders, even if the Master Servicer or the Special Servicer has
determined, in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is
obligated to make Servicing Advances pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement with respect to any Non-Serviced
Mortgage Loan, and the Master Servicer shall have no obligation or authority to
make Servicing Advances with respect to such Mortgage Loan.
Section 4.3 Advances by the Trustee.
(a) To the extent that the Master Servicer fails to make a P&I
Advance with respect to a Mortgage Loan by the Master Servicer Remittance Date
(other than a P&I Advance that the Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
with respect to such Mortgage Loan to the extent the Trustee receives written
notice from the Paying Agent not later than 10:00 a.m. (New York City time) on
the Distribution Date that such Advance has not been made by the Master Servicer
on the Master Servicer Remittance Date unless the Trustee determines that such
P&I Advance, if made, would be a Nonrecoverable Advance. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the Master Servicer has
failed to make a P&I Advance.
(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
actual notice thereof, the Trustee shall make such Servicing Advance promptly,
but in any event, not later than five Business Days after notice thereof in
accordance with Section 4.2, unless the Trustee determines that such Servicing
Advance, if made, would be a Nonrecoverable Advance.
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Section 4.4 Evidence of Nonrecoverability.
(a) If the Master Servicer or the Special Servicer determines at
any time, in its sole discretion, exercised in good faith, that any Advance
previously made (or Unliquidated Advance in respect thereof) or any proposed
Advance, if made, would constitute a Nonrecoverable Advance, such determination
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Master Servicer, the Paying Agent, the Special Servicer, the Operating Adviser
and the Rating Agencies (and the holder of the Serviced Companion Mortgage Loan
if the Advance relates to a Loan Pair) by the Business Day prior to the
Distribution Date. Such Officer's Certificate shall set forth the reasons for
such determination of nonrecoverability, together with, to the extent such
information, report or document is in the Master Servicer's or Special
Servicer's possession, any related financial information such as related income
and expense statements, rent rolls, occupancy status, property inspections and
any Appraisals performed within the last 12 months on the Mortgaged Property,
and, if such reports are used by the Master Servicer or the Special Servicer, as
applicable, to determine that any P&I Advance or Servicing Advance, as
applicable, would be a Nonrecoverable Advance, any engineers' reports,
environmental surveys, internal final valuations or other information relevant
thereto which support such determination. If the Trustee determines at any time
that any portion of an Advance previously made or a portion of a proposed
Advance that the Trustee is required to make pursuant to this Agreement, if
made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the Trustee
delivered to the Depositor, the Master Servicer, the Special Servicer, the
Paying Agent and the Operating Adviser similar to the Officer's Certificate of
the Master Servicer or the Special Servicer described in the prior sentence. If
the Special Servicer determines at any time that any portion of an Advance
previously made would constitute a Nonrecoverable Advance, such determination
shall be evidenced by an Officer's Certificate of a Responsible Officer of the
Special Servicer, delivered to the Depositor, the Master Servicer, the Trustee,
the Paying Agent and the Operating Adviser similar to the Officer's Certificate
of the Master Servicer described above. The Trustee shall not be required to
make an Advance that the Master Servicer or the Special Servicer (or with
respect to a Mortgage Loan included in a Loan Pair or any Non-Serviced Mortgage
Loan, the related Other Master Servicer) has previously determined to be a
Nonrecoverable Advance. Notwithstanding any other provision of this Agreement,
none of the Master Servicer, the Special Servicer or the Trustee shall be
obligated to, nor shall it, make any Advance or make any payment that is
designated in this Agreement to be an Advance, if 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 and Special Servicer's determinations in accordance with the above
provisions shall be conclusive and binding on the Trustee, the Paying Agent and
the Certificateholders. The Master Servicer shall consider Unliquidated Advances
in respect of prior P&I Advances and Servicing Advances as outstanding Advances
for purposes of nonrecoverablility determinations as if such Unliquidated
Advance were a P&I Advance or Servicing Advance, as applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee or Non-Serviced Mortgage Loan Fiscal Agent, as applicable,
shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances
pursuant to and to the extent set forth in the related Non-Serviced Mortgage
Loan Intercreditor Agreement (with, in
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each case, any accrued and unpaid interest thereon provided for under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in the
manner set forth in Section 5.2.
Section 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan. Any unreimbursed Advance funded from
the Master Servicer's, the Special Servicer's or the Trustee's own funds shall
accrue interest on a daily basis, at a per annum rate equal to the Advance Rate,
from and including the date such Advance was made to but not including the date
on which such Advance has been reimbursed; provided, however, that neither the
Master Servicer nor any other party shall be entitled to interest accrued on the
amount of any P&I Advance with respect to any Mortgage Loan or any B Note for
the period commencing on the date of such P&I Advance and ending on the day on
which the grace period applicable to the related Mortgagor's obligation to make
the related Scheduled Payment expires pursuant to the related Mortgage Loan or B
Note documents. All Late Collections on any Non-Serviced Mortgage Loan in
respect of interest shall, promptly following receipt thereof, be applied by the
Master Servicer to reimburse the interest component of any P&I Advance
outstanding with respect to such Non-Serviced Mortgage Loan. Any party that
makes a P&I Advance with respect to any Non-Serviced Mortgage Loan shall provide
to the applicable Non-Serviced Mortgage Loan Master Servicer monthly, at least
two Business Days prior to the next succeeding Due Date for such Non-Serviced
Mortgage Loan, written notice of whether (and, if any, how much) Advance
Interest will be payable on the interest component of that P&I Advance through
the next succeeding related Master Servicer Remittance Date. For purposes of
determining whether a P&I Advance is outstanding, amounts collected with respect
to a particular Mortgage Loan, B Note or REO Property and treated as collections
of principal or interest shall be applied first to reimburse the earliest P&I
Advance, and then each succeeding P&I Advance to the extent not inconsistent
with Section 4.6. The Master Servicer shall use efforts consistent with the
Servicing Standard to collect (but shall have no further obligation to collect),
with respect to the Mortgage Loans (and the Serviced Companion Mortgage Loans)
that are not Specially Serviced Mortgage Loans, Late Fees and default interest
from the 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 after the Servicing Transfer Event in respect of a Specially
Serviced Mortgage Loan, as to which the Special Servicer shall retain Late Fees
and default interest with respect to such Specially Serviced Mortgage Loan,
subject to the offsets set forth below) as additional servicing compensation
only to the extent such Late Fees and default interest exceed Advance Interest
on a "pool basis" for all Mortgage Loans other than Specially Serviced 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
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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, the
Trustee with respect to a Specially Serviced Mortgage Loan or REO Mortgage Loan
cannot be recovered from the related Mortgagor, the amount of such Advance
Interest shall be payable to the Trustee, the Special Servicer or the Master
Servicer, as the case may be, from amounts on deposit in the Certificate Account
(or sub-account thereof) or the Distribution Account, to the extent of amounts
identified to be applied therefor, pursuant to Section 5.2(a) or Section
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 from the Mortgage Loans 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 "pool basis" for non-Specially Serviced Mortgage
Loans and on a "loan-by-loan basis" (under which Late Fees and default interest
will be offset against the Advance Interest arising only from that particular
Specially Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the
case may be, to the payment of Advance Interest on all Advances on such
non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage Loans,
as the case may be, then being reimbursed. Advance Interest payable to the
Master Servicer, the Special Servicer or the Trustee in respect of Servicing
Advances on any Loan Pair shall be allocated to the Serviced Pari Passu Mortgage
Loan and the Serviced Companion Mortgage Loan on a pro rata basis based upon the
Principal Balance thereof.
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(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,
subject to Section 4.4. In the event that the Master Servicer fails to reimburse
the Special Servicer hereunder or the Master Servicer determines that such
Servicing Advance was or, if made, would be a Nonrecoverable Advance and the
Master Servicer does not make such payment, the Special Servicer shall notify
the Master Servicer and the Paying Agent in writing of such nonpayment and the
amount payable to the Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The Master
Servicer, the Paying Agent and the Trustee shall have no obligation to verify
the amount payable to the Special Servicer pursuant to this Section 4.6(e) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(e).
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.
(a) On or prior to the Closing Date, the Master Servicer shall
open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "Xxxxx Fargo Bank, National Association, as Master
Servicer for LaSalle Bank National Association, as Trustee for the Holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24" (the "Certificate Account"). On or
prior to the Closing Date, the Master Servicer shall open, or cause to be
opened, and shall maintain, or cause to be maintained an additional separate
account or accounts in the name of "Xxxxx Fargo Bank, National Association, as
Master Servicer for LaSalle Bank National Association, as Trustee for the
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24" (the "Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first
deposit funds in a Certificate Account or the Interest Reserve Account, as the
case may be, the Master Servicer shall give to the Paying Agent and the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Primary Servicer's or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
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(c) On the Closing Date, the Master Servicer shall deposit the
Initial Deposit delivered to it by the Depositor on that date into the
Certificate Account. The Master Servicer shall deposit, or cause to be
deposited, into the Certificate Account on the Business Day following receipt
(or, in the case of an inadvertent failure to make such deposit on the Business
Day following receipt, within 3 Business Days of discovery of such failure and
in the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Master
Servicer by the Special Servicer from an REO Account pursuant to Section 9.14),
other than in respect of interest and principal on the Mortgage Loans, any
Serviced Companion Mortgage Loan or any B Note due on or before the Cut-Off Date
which shall be remitted to the Depositor (provided that the Master Servicer (I)
may retain amounts otherwise payable to the Master Servicer as provided in
Section 5.2(a) rather than deposit them into the Certificate Account, (II)
shall, rather than deposit them in the Certificate Account, directly remit to
the Primary Servicer the Primary Servicing Fees payable as provided in Section
5.2(a)(iv)(unless already retained by the Primary Servicer), and (III) shall,
rather than deposit them in the Certificate Account, directly remit the Excess
Servicing Fees to the holders thereof as provided in Section 5.2(a)(iv))(unless
already retained by the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal,
including Principal Prepayments, the principal component of
Scheduled Payments, and any Late Collections in respect thereof,
on the Mortgage Loans, any Serviced Companion Mortgage Loan and
any B Note;
(B) Interest: subject to subsection (d) hereof, all payments
on account of interest on the Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note (minus any portion of any
such payment that is allocable to the period prior to the Cut-Off
Date which shall be remitted to the Depositor and excluding
Interest Reserve Amounts to be deposited in the Interest Reserve
Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with
respect to the Mortgage Loans, any Serviced Companion Mortgage
Loan and any B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the
related Mortgagor in accordance with the Servicing Standard,
which proceeds shall be deposited by the Master Servicer into an
Escrow Account and not deposited in the Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other
than proceeds to be applied to the restoration or repair of the
property subject to the related Mortgage or released to the
related Mortgagor in accordance with the Servicing Standard,
which proceeds shall be deposited by the Master Servicer into an
Escrow Account and not deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
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(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 set
forth in the fifth paragraph of Section 2.3(a)) paid by a Seller
in connection with the substitution of any Qualifying Substitute
Mortgage Loans, payments or recoveries in respect of Unliquidated
Advances or 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 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.
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(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate (without any conversion to a 30/360 basis as provided in the
definition thereof) on the Scheduled Principal Balance of such Mortgage Loan as
of the Due Date in the month in which such Distribution Date occurs, to the
extent a Scheduled Payment or P&I Advance is timely made in respect thereof for
such Due Date (all amounts so deposited in any consecutive January and February
in respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be deposited into the Interest Reserve
Account, the REMIC I Net Mortgage Rate used in this calculation for those months
will be calculated without regard to any adjustment for Interest Reserve Amounts
or the interest accrual basis as set forth in the proviso to the definition of
"REMIC I Net Mortgage Rate."
(e) Funds in the Certificate Account (including any A/B Loan
Custodial Accounts and Serviced Companion Mortgage Loan Custodial Accounts) and
Interest Reserve Account may be invested and, if invested, shall be invested by,
and at the risk of, the Master Servicer in Eligible Investments selected by the
Master Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 and the holder of any related
Serviced Companion Mortgage Loan or B Note as their interests may appear." None
of the Depositor, the Mortgagors, the Paying Agent or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
credited to an A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or Serviced
Companion Mortgage Loan Custodial Account, as the case may be) or Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized; provided that, such investment losses shall not include any loss with
respect to such investment which is incurred solely as a result of the
insolvency of the federal or state chartered depositary institution or trust
company at which such Investment Account is maintained, so long as such
depositary institution or trust company (a) satisfied the qualifications set
forth in the definition of "Eligible Account" both at the time such investment
was made and as of a date not more than 30 days prior to the date of such loss
and (b) is not the Person that made the relevant investment. If the Master
Servicer deposits in or transfers to the Certificate Account, any A/B Loan
Custodial Account, any Serviced Companion Mortgage Loan Custodial Account or the
Interest Reserve Account, as the case may be, any amount not required to be
deposited therein or transferred thereto, it may at any time withdraw such
amount or retransfer such amount from the Certificate Account, such A/B Loan
Custodial Account, such Serviced Companion Mortgage
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Loan Custodial Account or the Interest Reserve Account, as the case may be, any
provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if
any default occurs in the making of a payment due under any Eligible Investment,
or if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account, the related Serviced Companion Mortgage Loan
Custodial Account, the related A/B Loan Custodial Account or the Interest
Reserve Account, as applicable, an amount equal to all amounts due under any
such Eligible Investment (net of anticipated income or earnings thereon that
would have been payable to the Master Servicer as additional servicing
compensation) the Master Servicer shall have the sole right to enforce such
payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that it
services in accordance with the requirements set forth in Section 8.3(e). Within
20 days following the first anniversary of the Closing Date, the Master Servicer
shall deliver to the Trustee, the Paying Agent and the Operating Adviser for
each Mortgage Loan set forth on Schedule VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as to which an
upfront reserve was collected at closing in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the Master Servicer and the
Special Servicer (which shall itself consult with the Operating Adviser) will
consult with each other as to whether there exists a material default under the
underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XI,
as to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, the Master Servicer shall, unless the
Scheduled Payment is received before the end of such Collection Period, make a
P&I Advance by deposit to the Certificate Account on the Master Servicer
Remittance Date in an amount equal to the Scheduled Payment or the Assumed
Scheduled Payment, as applicable, and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment or Assumed Scheduled Payment, as applicable, shall be deemed
to have been received in such Collection Period.
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account.
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(a) Subsection (I). The Master Servicer shall, from time to time,
make withdrawals from the Certificate Account and remit them by wire transfer
prior to 12:00 p.m., New York City time, on the related Master Servicer
Remittance Date in immediately available funds to the account specified in this
Section or otherwise (w) to such account as it shall determine from time to time
of amounts payable to the Master Servicer from the Certificate Account (or,
insofar as they relate to a B Note, from the related A/B Loan Custodial Account
or, insofar as they relate to a Serviced Companion Mortgage Loan, from the
related Serviced Companion Mortgage Loan Custodial Account) pursuant to clauses
(i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (x) to the account
specified in writing by the Paying Agent from time to time of amounts payable to
the Paying Agent and the Trustee from the Certificate Account (and, insofar as
they relate to a B Note, from the related A/B Loan Custodial Account and,
insofar as they relate to a Serviced Companion Mortgage Loan, from the Serviced
Companion Mortgage Loan Custodial Account) pursuant to clauses (ii), (iii), (v),
(vi), (xi), (xii) and (xiii) below; 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 accordance with Section 4.4 that any
Advance is a Nonrecoverable Advance, Servicing Advances on the related Mortgage
Loan, Serviced Companion Mortgage Loan or B Note, as applicable, from payments
made by the related Mortgagor of the amounts to which a Servicing Advance
relates or from REO Income from the related REO Property or from Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to
the extent that a Servicing Advance has been or is being reimbursed, any related
Advance Interest thereon first, from Late Fees and default interest collected
during the Collection Period during which
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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 "pool basis"
for non-Specially Serviced Mortgage Loans (and any Serviced Companion Mortgage
Loans and B Notes that are not Specially Serviced Mortgage Loans) and on a
"loan-by-loan basis" (under which Late Fees and default interest will be offset
against the Advance Interest arising only from the particular Specially Serviced
Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may be, to the
payment of Advance Interest on all Advances on such non-Specially Serviced
Mortgage Loans (and any Serviced Companion Mortgage Loan and B Notes that are
not Specially Serviced Mortgage Loans) or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed or (y) after a Final Recovery
Determination or determination that any Servicing Advance on the related
Mortgage Loan, Serviced Companion Mortgage Loan or B Note is a Nonrecoverable
Advance, any Servicing Advances made on the related Mortgage Loan, related
Serviced Companion Mortgage Loan, related B Note or REO Property from any funds
on deposit in the Certificate Account (regardless of whether such amount was
recovered from the applicable Mortgage Loan, Serviced Companion Mortgage Loan, B
Note or REO Property) and pay Advance Interest thereon first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed (applying such Late Fees and default interest on a "pool
basis" for all non-Specially Serviced Mortgage Loans (and any Serviced Companion
Mortgage Loans and B Notes that are not Specially Serviced Mortgage Loans) and
on a "loan-by-loan basis", as set forth above, for all Specially Serviced
Mortgage Loans, as the case may be, to the payment of Advance Interest on all
Advances on such non-Specially Serviced Mortgage Loans (and any Serviced
Companion Mortgage Loans and B Notes that are not Specially Serviced Mortgage
Loans) or such Specially Serviced Mortgage Loans, as the case may be, then being
reimbursed), then from Excess Liquidation Proceeds then available and then from
any other amounts on deposit in the Certificate Account and (B) in the case of
any Non-Serviced Mortgage Loan and from any funds on deposit in the Certificate
Account, to reimburse the applicable Non-Serviced Mortgage Loan Master Servicer,
the applicable Non-Serviced Mortgage Loan Special Servicer, the applicable
Non-Serviced Mortgage Loan Trustee and the applicable Non-Serviced Mortgage Loan
Fiscal Agent for Pari Passu Loan Nonrecoverable Advances and any accrued and
unpaid interest thereon provided for under the related Non-Serviced Mortgage
Loan Intercreditor Agreement and Non-Serviced Mortgage Loan Pooling and
Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master
Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final
Recovery Determination or determination that any Advance is a Nonrecoverable
Advance, any P&I Advances from Late Collections made by the Mortgagor of the
amounts to which a P&I Advance relates, or REO Income from the related REO
Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds
or Purchase Proceeds and, to the extent that a P&I Advance has been or is being
reimbursed, any related Advance Interest thereon, first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account; provided
that, Late Fees and default interest will be applied on a "pool basis" for
non-Specially Serviced Mortgage Loans and on a "loan-by-loan basis" (under which
Late Fees and default interest will
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be offset against the Advance Interest arising only from the particular
Specially Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the
case may be, to the payment of Advance Interest on all Advances on such
non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage Loans,
as the case may be, then being reimbursed or (y) if after a Final Recovery
Determination or determination in accordance with Section 4.4 that any P&I
Advance on the related Mortgage Loan is a Nonrecoverable Advance, any P&I
Advances made on the related Mortgage Loan or REO Property from funds on deposit
in the Certificate Account (regardless of whether such amount was recovered from
the applicable Mortgage Loan or REO Property) and any Advance Interest thereon,
first, from Late Fees and default interest collected during the Collection
Period during which such Advance is reimbursed (applying such Late Fees and
default interest on a "pool basis" for all non-Specially Serviced Mortgage Loans
and on a "loan-by-loan basis", as set forth above, for all Specially Serviced
Mortgage Loans, as the case may be, to the payment of Advance Interest on all
Advances on such non-Specially Serviced Mortgage Loans or such Specially
Serviced Mortgage Loans, as the case may be, then being reimbursed), then from
Excess Liquidation Proceeds then available and then from any other amounts on
deposit in the Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to
pay to itself the Master Servicing Fee, subject to reduction for any
Compensating Interest, to pay to the Special Servicer the Special Servicing Fee
and the Work-Out Fee, to pay to the Primary Servicer (or the Master Servicer)
the Primary Servicing Fees, and to pay to the parties entitled thereto the
Excess Servicing Fees (to the extent not previously retained by any of such
parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the
Distribution Account for withdrawal by the Paying Agent, the Paying Agent Fee
and the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled
thereto any amounts specified herein to be Additional Trust Expenses (at the
time set forth herein or in the definition thereof), and any other amounts that
in fact constitute Additional Trust Expenses whose payment is not more
specifically provided for in this Agreement; provided that the Depositor shall
not be entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the Certificate Account
(including any A/B Loan Custodial Accounts and Serviced Companion Mortgage Loan
Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications
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to Specially Serviced Mortgage Loans), to the extent not offset by Prepayment
Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest) to the Distribution Account (or in the case of
any Excess Interest, deposit to the Excess Interest Sub-account under Section
5.3(b)), other than amounts held for payment in future periods or pursuant to
clause (xii) below;
(xii) Reserve Account: to make payment on each Master
Servicer Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note for which an A/B Loan
Custodial Account is required to be established by the Master Servicer:
(A) the Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to
the portion of the Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts necessary for the
payments or reimbursement of amounts described in any one or more
of clauses (i), (ii), (iii), (iv), (vi), (vii), (viii), (ix) and
(xii) above, but only insofar as the payment or reimbursement
described therein arises from or is related solely to such A/B
Mortgage Loan and is allocable to the A/B Mortgage Loan pursuant
to this Agreement or the related Intercreditor Agreement, and the
Master Servicer shall also be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to the
portion of the Certificate Account that does not constitute the
A/B Loan Custodial Account, of amounts transferred to such
related A/B Loan Custodial Account in error, and amounts
necessary for the clearing and termination of the Certificate
Account pursuant to Section 8.29;
(B) the Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account to
the portion of the Certificate Account that does not constitute
the A/B Loan Custodial Account, of amounts not otherwise
described in clause (A) above to which the holder of an A Note is
entitled under the A/B Mortgage Loan and the related
Intercreditor Agreement (including in respect of interest,
principal and Prepayment Premiums in respect of the A Note
(whether or not by operation of any provision of the related
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
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(C) the Master Servicer shall on each Master Servicer
Remittance Date remit to the holder of the related B Note all
amounts on deposit in such A/B Loan Custodial Account (net of
amounts permitted or required to be transferred therefrom as set
forth in clauses (A) and/or (B) above), to the extent that the
holder of such B Note is entitled thereto under the related
Intercreditor Agreement (including by way of the operation of any
provision of the related Intercreditor Agreement that entitles
the holder of such B Note to reimbursement of cure payments made
by it).
and provided further, however, that in the case of any Serviced Companion
Mortgage Loan:
(A) the Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage
Loan Custodial Account to the portion of the Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts necessary for the payments or
reimbursement of amounts described in any one or more of clauses
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xii)
above, but only insofar as the payment or reimbursement described
therein arises from or is related solely to such Loan Pair and is
allocable to the Serviced Companion Mortgage Loan, and the Master
Servicer shall also be entitled to make transfers from time to
time, from the related Serviced Companion Mortgage Loan Custodial
Account to the portion of the Certificate Account that does not
constitute any Serviced Companion Mortgage Loan Custodial
Account, of amounts transferred to such related Serviced
Companion Mortgage Loan Custodial Account in error, and amounts
necessary for the clearing and termination of the Certificate
Account pursuant to Section 8.29; provided, however that the
Master Servicer shall not be entitled to make transfers from the
portion of the Certificate Account that does not constitute any
Serviced Companion Mortgage Loan Custodial Account (other than
amounts previously transferred from the related Serviced
Companion Mortgage Loan Custodial Account in accordance with this
clause (A)) of amounts necessary for the payment or reimbursement
of amounts described in any one or more of the foregoing clauses;
(B) the Master Servicer shall be entitled to make transfers
from time to time, from the related Serviced Companion Mortgage
Loan Custodial Account to the portion of the Certificate Account
that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts not otherwise described in clause
(A) above to which the holder of a Serviced Pari Passu Mortgage
Loan is entitled under the related Loan Pair Intercreditor
Agreement (including in respect of interest, principal and
Prepayment Premiums); and
(C) the Master Servicer shall, on either (x) the later of
(i) one (1) Business Day after the related Determination Date or
(ii) alternatively, but only if the related Serviced Companion
Mortgage Loan is primary serviced under the Primary Servicing
Agreement, one (1) Business Day after receipt from the Primary
Servicer or (y) such other date as may be agreed to between the
Master Servicer and the holder of the related Serviced
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Companion Mortgage Loan (in their respective sole discretion),
remit to the holder of the related Serviced Companion Mortgage
Loan all amounts on deposit in such related Serviced Companion
Mortgage Loan Custodial Account (net of amounts permitted or
required to be transferred therefrom as set forth in clauses (A)
and/or (B) above), to the extent that the holder of such Serviced
Companion Mortgage Loan is entitled thereto under the related
Loan Pair Intercreditor Agreement.
No decision by the Master Servicer or the Trustee under either
this Section 5.2(a) or subsection (iv) of Section 5.2(a)(II), to defer the
reimbursement of Advances and/or Advance Interest shall be construed as an
agreement by the Master Servicer to subordinate (in respect of realizing
losses), to any Class of Certificates, such party's right to such reimbursement
during such period of deferral.
Expenses incurred with respect to any Loan Pair shall be
allocated in accordance with the related Loan Pair Intercreditor Agreement.
Expenses incurred with respect to an A/B Mortgage Loan shall be allocated in
accordance with the related Intercreditor Agreement. The Master Servicer shall
keep and maintain a separate accounting for each Mortgage Loan, Serviced
Companion Mortgage Loan and B Note for the purpose of justifying any withdrawal
or transfer from the Certificate Account, each Serviced Companion Mortgage Loan
Custodial Account and any A/B Loan Custodial Account, as applicable. If funds
collected in respect of the A Notes are insufficient to pay the Master Servicing
Fee, then the Master Servicer shall be entitled to withdraw the amount of such
shortfall from the collections on, and other proceeds of, the B Note that are
held in the related A/B Loan Custodial Account. The Master Servicer shall not be
permitted to withdraw any funds from the portion of the Certificate Account that
does not constitute the A/B Loan Custodial Account unless there are no remaining
funds in the related A/B Loan Custodial Account available and required to be
paid in accordance with the related Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts.
If any Advance made with respect to any Mortgage Loan on or
before the date on which such Mortgage Loan becomes (or, but for
the requirement that the Mortgagor shall have made three
consecutive scheduled payments under its modified terms, would
then constitute) a Rehabilitated Mortgage Loan, together with
Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed to
the Person who made such Advance on or before the date, if any,
on which such Mortgage Loan becomes a Rehabilitated Mortgage
Loan, such Advance, together with such Advance Interest, shall
constitute a "Workout-Delayed Reimbursement Amount" to the extent
that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" 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
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the right of any Person hereunder to determine that such amount
instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii)
below (subject to the terms and conditions thereof) sets forth
the terms of and conditions to the right of a Person to be
reimbursed for any Workout-Delayed Reimbursement Amount to the
extent that such Person is not otherwise entitled to
reimbursement and payment of such Workout-Delayed Reimbursement
Amount pursuant to the operation of Section 5.2(a)(I) above.
Subsection (iv) below (subject to the terms and conditions
thereof) authorizes the Master Servicer to abstain from
reimbursing itself (or, if applicable, the Trustee to abstain
from obtaining reimbursement) for Nonrecoverable Advances under
certain circumstances at its sole option. Upon any determination
that all or any portion of a Workout-Delayed Reimbursement Amount
constitutes a Nonrecoverable Advance, then the reimbursement or
payment of such amount (and any further Advance Interest that may
accrue thereon) shall cease to be subject to the operation of
subsection (iii) below, such amount (and further Advance
Interest) shall be as fully payable and reimbursable to the
relevant Person as would any other Nonrecoverable Advance (and
Advance Interest thereon) and, as a Nonrecoverable Advance, such
amount may become the subject of the Master Servicer's (or, if
applicable, the Trustee's) exercise of its sole option authorized
by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement
Amounts. The Master Servicer, the Special Servicer and the
Trustee, as applicable, shall be entitled to reimbursement and
payment for all Workout-Delayed Reimbursement Amounts in each
Collection Period; provided, however, that the aggregate amount
(for all such Persons collectively) of such reimbursements and
payments in such Collection Period shall not exceed (and the
reimbursement and payment shall be made from) the aggregate
amount in the Collection Account allocable to principal received
or advanced with respect to the Mortgage Loans for such
Collection Period contemplated by clause (I)(A) of the definition
of Principal Distribution Amount (but not including any such
amounts that constitute Advances) and net of any Nonrecoverable
Advances then outstanding and reimbursable from such principal in
accordance with Section 5.2(a)(II)(iv) below. As and to the
extent provided in clause (II)(A) of the definition thereof, the
Principal Distribution Amount for the Distribution Date related
to such Collection Period shall be reduced to the extent that
such payment or reimbursement of a Workout-Delayed Reimbursement
Amount is made from the aggregate amount in the Collection
Account allocable to principal pursuant to the preceding
sentence.
(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
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reimbursements and payments of Nonrecoverable Advances (and such
Advance Interest thereon) are made, such reimbursements and
payments shall be made, first, from the aggregate amount in the
Collection Account allocable to principal received or advanced
with respect to the Mortgage Loans for such Collection Period
contemplated by clause (I)(A) of the definition of Principal
Distribution Amount (but not including any such amounts that
constitute Advances, and prior to any deduction for
Workout-Delayed Reimbursement Amounts (and Advance Interest
thereon) that were reimbursed or paid during the related
Collection Period from amounts allocable to principal received
with respect to the Mortgage Loans, as described by clause
(II)(A) of the definition of Principal Distribution Amount and
pursuant to subsection (iii) of Section 5.2(a)(II)), and then
from other collections (including interest) on the Mortgage Loans
for such Collection Period, provided, that if interest is used to
reimburse such Nonrecoverable Advances, the party entitled to
such reimbursement shall notify the Rating Agencies at least
fifteen (15) days prior to such reimbursement, unless
circumstances exist that are extraordinary in the sole discretion
of such party, and (b) if and to the extent that the amount of
such a Nonrecoverable Advance (and Advance Interest thereon),
together with all Nonrecoverable Advances (and Advance Interest
thereon) theretofore reimbursed during such Collection Period,
would exceed such principal on the Mortgage Loans for such
Collection Period (and Advance Interest thereon), the Master
Servicer (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
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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 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, none of the Master Servicer or
the Trustee shall have the right to abstain from reimbursing itself for
any Nonrecoverable Advance to the extent of the amount described in
clause (I)(A) of the definition of Principal Distribution Amount.
(v) Reimbursement Rights of the Master Servicer, Special
Servicer and Trustee Are Senior. Nothing in this Agreement shall
be deemed to create in any Certificateholder a right to prior
payment of distributions over the Master Servicer's, the Special
Servicer's or the Trustee's right to reimbursement for Advances
plus Advance Interest (whether those that constitute
Workout-Delayed Reimbursement Amounts, those that have been the
subject of the Master Servicer's election authorized in
subsection (iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account (or sub-account thereof) and shall be distributed on the Master Servicer
Remittance Date or Dates to which such succeeding Collection Period or Periods
relate, provided, however, that as to the Mortgage Loans set forth on Schedule
XI, for which the Scheduled Payment due each month is due on a Due Date
(including any grace period) that may occur after the end of the Collection
Period in such month, sums received by the Master Servicer with respect to such
Scheduled Payment but after the end of such Collection Period shall be applied
by the Master Servicer to reimburse any related P&I Advance made pursuant to
Section 5.1(h), and the Master Servicer shall remit to the Distribution Account
on any Master
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Servicer Remittance Date for a Collection Period any Principal
Prepayments and Balloon Payments received after the end of such Collection
Period but no later than the second Business Day immediately preceding such
Master Servicer Remittance Date on the Mortgage Loans set forth on Schedule XI.
The Master Servicer shall use its best efforts to remit to the Distribution
Account on any Master Servicer Remittance Date for a Collection Period any
Balloon Payments received after the date that is two Business Days immediately
preceding the related Master Servicer Remittance Date and prior to the
Distribution Date. In connection with the deposit of any Balloon Payments to the
Distribution Account in accordance with the immediately preceding sentence, the
Master Servicer shall promptly notify the Paying Agent and the Paying Agent
shall, if it has already reported anticipated distributions to the Depository,
use commercially reasonable efforts to cause the Depository to make the revised
distribution on a timely basis on such Distribution Date. Neither the Master
Servicer nor the Paying Agent shall be liable or held responsible for any
resulting delay or failure in the making of such distribution to
Certificateholders. For purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," (i) the Scheduled Payments relating
to the Mortgage Loans set forth on Schedule XI that are collected after the end
of the related Collection Period and (ii) Principal Prepayments and Balloon
Payments relating to the Mortgage Loans set forth on Schedule XI received after
the end of the related Collection Period but prior to the Master Servicer
Remittance Date shall each be deemed to have been collected in the prior
Collection Period.
(c) On each Master Servicer Remittance Date in March of every
year commencing in March 2007 and on the Master Servicer Remittance Date related
to the final Distribution Date, the Master Servicer shall withdraw all amounts
then in the Interest Reserve Account and deposit such amounts into the
Distribution Account.
Section 5.3 Distribution Account and Reserve Account.
(a) The Paying Agent, on behalf of the Trustee shall establish
(with respect to clause (i), on or prior to the Closing Date, and with respect
to clause (ii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank, National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24, Distribution Account" and (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association, as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24, Reserve Account." The Distribution
Account and the Reserve Account shall be Eligible Accounts. Funds in the Reserve
Account shall not be invested. The Distribution Account and Reserve Account
shall be held separate and apart from and shall not be commingled with any other
monies including, without limitation, other monies of the Paying Agent held
under this Agreement, it being understood that the Reserve Account may be a
subaccount of the Distribution Account.
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Funds in the Distribution Account may be invested and, if
invested, shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 and the holder of any
related B Note as their interests may appear." None of the Depositor, the
Mortgagors, the Special Servicer, the Master Servicer, the Primary Servicer or
the Trustee shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(b) The Paying Agent shall deposit into the Distribution Account
or the Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer and the Trustee and all Excess Liquidation
Proceeds. The Paying Agent shall deposit amounts constituting collections of
Excess Interest on the Mortgage Loans into the Excess Interest Sub-account. On
any Master Servicer Remittance Date, the Master Servicer shall have no duty to
remit to the Distribution Account any amounts other than amounts held in the
Certificate Account and collected during the related Collection Period as
provided in clauses (v) and (xi) of Section 5.2(a) and the P&I Advance Amount
and, on the Master Servicer Remittance Date occurring in March of any year,
commencing in March 2007, and on the Master Servicer Remittance Date related to
the final Distribution Date, amounts held in the Interest Reserve Account. The
Paying Agent shall make withdrawals from the Distribution Account (including the
Excess Interest Sub-account) and the Reserve Account only for the following
purposes:
(i) to withdraw amounts deposited in the Distribution
Account and the Reserve Account in error and pay such amounts to the Persons
entitled thereto;
(ii) to pay any amounts payable to the Master Servicer, the
Primary Servicer, the Special Servicer and the Trustee (including the Trustee's
Fee (other than that portion thereof, that constitutes the Paying Agent's Fee))
and the Paying Agent (including the Paying Agent Fee), or other expenses or
other amounts permitted to be paid hereunder and not previously paid to such
Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders
pursuant to Sections 6.5 and 6.11; and
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(iv) to clear and terminate the Distribution Account and the
Reserve Account pursuant to Section 10.2.
Section 5.4 Paying Agent Reports.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Paying Agent by the Master Servicer (no later than
1:00 p.m., New York time on the Report Date), the Paying Agent shall make
available to the general public via its internet website initially located at
"xxx.xxxxxxx.xxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholders Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the Loan
Periodic Update File, Loan Setup File, Bond Level File and the Collateral
Summary File, (iv) the CMSA Advance Recovery Report, (v) the supplemental
reports set forth in paragraph (b) of the definition of Unrestricted Servicer
Reports and (vi) as a convenience for interested parties (and not in furtherance
of the distribution thereof under the securities laws), the Final Prospectus
Supplement and this Agreement. In addition, the Paying Agent will make available
on its website any reports of Forms 10-D, 10-K and 8-K promptly after they have
been filed with respect to the Trust through the XXXXX system.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in December 2006). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder, each of the parties to this Agreement, each of the
Rating Agencies, each of the Financial Market Publishers, each of the
Underwriters, the Operating Adviser, the Placement Agents, any prospective
purchaser of the Certificates and any Certificate Owner upon receipt (which may
be in electronic form) from such person of an Investor Certificate in the form
of Exhibit Y, and any other person upon the direction of the Depositor, the
Placement Agents or any Underwriter. For assistance with the above-mentioned
Paying Agent services, Certificateholders or any party hereto may initially call
000-000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer, the Special Servicer, the Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence
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shall not in any way limit the liability the Paying Agent may otherwise have in
the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if
required by federal regulation, of any Certificateholder (or holder of a
Serviced Companion Mortgage Loan or B Note) that is a savings association, bank,
or insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of a Serviced
Companion Mortgage Loan or B Note) such reports and access to non-privileged
information and documentation regarding the Mortgage Loans and the Certificates
as such Certificateholder (or such holder of a Serviced Companion Mortgage Loan
or B Note) may reasonably deem necessary to comply with applicable regulations
of the Office of Thrift Supervision or successor or other regulatory authorities
with respect to investment in the Certificates; provided that the Paying Agent
shall be entitled to be reimbursed by such Certificateholder (or such holder of
a Serviced Companion Mortgage Loan or B Note) for the Paying Agent's actual
expenses incurred in providing such reports and access. The holder of a B Note
shall be entitled to receive information and documentation only with respect to
its related A/B Mortgage Loan and the holder of a Serviced Companion Mortgage
Loan shall be entitled to receive information and documentation only with
respect to its related Loan Pair, pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each
Person who at any time during the calendar year was a Certificateholder of
record, customary information as the Paying Agent deems necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the
Financial Market Publishers, the Depositor, the Master Servicer, the Special
Servicer, the Primary Servicer, the Trustee, the Operating Adviser, any
Certificateholder, the Luxembourg Paying Agent, prospective Certificate Owner or
any Person reasonably designated by any Placement Agent, or any Underwriter upon
reasonable notice and during normal business hours, reasonable access to all
relevant, non-attorney privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all other relevant matters relating
to this Agreement, and access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however, that the Paying Agent shall
be permitted to require payment by the requesting party (other than the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Operating
Adviser, any Placement Agent or any Underwriter or any Rating Agency) of a sum
sufficient to cover the reasonable expenses actually incurred by the Paying
Agent of providing access or copies (including electronic or digital copies) of
any such information requested in accordance with the preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance
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written notice for review by any Certificateholder, any Certificate Owner, any
prospective Certificate Owner, the Placement Agents, the Underwriters, each
Rating Agency, the Special Servicer, the Depositor, and solely as with respect
to any A/B Mortgage Loan, the holder of the B Note and solely as with respect to
any Loan Pair, the holder of the Serviced Companion Mortgage Loan, originals or
copies of, among other things, any Phase I Environmental Report or engineering
report prepared or appraisals performed in respect of each Mortgaged Property
provided, however, that the Paying Agent shall be permitted to require payment
by the requesting party (other than either Rating Agency or the Operating
Adviser) of a sum sufficient to cover the reasonable expenses actually incurred
by the Paying Agent or the Trustee of providing access or copies (including
electronic or digital copies) of any such information reasonably requested in
accordance with the preceding sentence.
Section 5.5 Paying Agent Tax Reports. The Paying Agent shall
perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool and the Class P Grantor Trust under the Code,
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Paying Agent shall provide or cause to be provided (i)
to the United States Treasury or other Persons (including, but not limited to,
the Transferor of a Class R-I, Class R-II or Class R-III Certificate, to a
Disqualified Organization or to an agent that has acquired a Class R-I, Class
R-II or Class R-III Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Class R-I, Class R-II or Class R-III Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions; in the case of (i),
subject to reimbursement of expenses relating thereto in accordance with Section
7.12. The Master Servicer shall on a timely basis provide the Paying Agent with
such information concerning the Mortgage Loans as is necessary for the
preparation of the tax or information returns or receipts of each REMIC Pool and
the Class P Grantor Trust as the Paying Agent may reasonably request from time
to time. The Special Servicer is required to provide to the Master Servicer all
information in its possession with respect to the Specially Serviced Mortgage
Loans in order for the Master Servicer to comply with its obligations under this
Section 5.5. The Paying Agent shall be entitled to conclusively rely on any such
information provided to it by the Master Servicer or the Special Servicer and
shall have no obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Trustee any unpaid fees, expenses and other amounts then required
to be paid pursuant to this Agreement, and then, to the Paying Agent, any unpaid
fees, expenses and other amounts then required to be paid pursuant to this
Agreement, and then at the written direction of the Master Servicer, withdraw
from the Distribution Account and pay to the Master Servicer, the Primary
Servicer and Special Servicer any unpaid servicing compensation or other amounts
currently required to be paid pursuant to this Agreement (to the extent not
previously retained or withdrawn by the Master Servicer from the Certificate
Account), and (2) second, make distributions in the manner and amounts set forth
below.
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Each distribution to Holders of Certificates shall be made by
check mailed to such Holder's address as it appears on the Certificate Register
of the Certificate Registrar or, upon written request to the Paying Agent on or
prior to the related Record Date (or upon standing instructions given to the
Paying Agent on the Closing Date prior to any Record Date, which instructions
may be revoked at any time thereafter upon written notice to the Paying Agent
five days prior to the related Record Date) made by a Certificateholder by wire
transfer in immediately available funds to an account specified in the request
of such Certificateholder; provided, that (i) remittances to the Paying Agent
shall be made by wire transfer of immediately available funds to the
Distribution Account and the Reserve Account; and (ii) the final distribution in
respect of any Certificate shall be made only upon presentation and surrender of
such Certificate at such location specified by the Paying Agent in a notice
delivered to Certificateholders pursuant to Section 10.2(a). If any payment
required to be made on the Certificates is to be made on a day that is not a
Business Day, then such payment will be made on the next succeeding Business Day
without compensation for such delay. All distributions or allocations made with
respect to Holders of Certificates of a Class on each Distribution Date shall be
made or allocated among the outstanding Interests in such Class in proportion to
their respective initial Certificate Balances or Percentage Interests for the
Class X Certificates.
Section 6.2 REMIC I.
(a) On each Distribution Date, the Paying Agent shall be deemed
to distribute to itself on behalf of the Trustee, as holder of the REMIC I
Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution Amount
attributable to interest (other than Excess Interest) collected or deemed
collected on or with respect to each Mortgage Loan or related REO Property,
Distributable Certificate Interest to each Corresponding REMIC I Regular
Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or related REO Property, principal to the Corresponding REMIC
I Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining amount of the Available Distribution
Amount with respect to each Mortgage Loan (other than Excess Interest) or
related REO Property, to reimburse any Realized Losses previously allocated to
the REMIC I Regular Interests, plus interest on such Realized Losses at the
related REMIC I Net Mortgage Rate previously allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders at such
time as the Certificate Balance of all Classes of REMIC I Regular Interests have
been reduced to zero, and Realized Losses (including interest thereon)
previously allocated thereto have been reimbursed to the Holders of the REMIC I
Regular Interests, any amounts of the Available Distribution Amount remaining
with respect to each Mortgage Loan (other than Excess Interest) or related REO
Property, to the extent of the Trust's interest therein.
Section 6.3 REMIC II.
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(a) On each Distribution Date, the Paying Agent shall be deemed
to distribute to itself on behalf of the Trustee, as holder of the REMIC II
Regular Interests, amounts distributable to any Class of Principal Balance
Certificates pursuant to Section 6.5 or Section 10.1 to its Corresponding REMIC
II Regular Interest set forth in the Preliminary Statement hereto; provided that
interest shall be deemed to have been distributed pro rata among two or more
Corresponding REMIC II Regular Interests that correspond to a Class of Principal
Balance Certificates; and provided, further, that distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-1A; second, to REMIC II Regular Interest A-1B; in
each case, until their respective Certificate Balances are reduced to zero;
(ii) with respect to the Class A-2 Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-2A; second, to REMIC II Regular Interest A-2B;
third, to REMIC II Regular Interest A-2C; and fourth, to REMIC II Regular
Interest A-2D; in each case, until their respective Certificate Balances are
reduced to zero;
(iii) with respect to the Class A-AB Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-ABA; and second, to REMIC II Regular Interest A-ABB,
in each case, until their respective Certificate Balances are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest A-4A; second, to REMIC II Regular Interest A-4B; and
third, to REMIC II Regular Interest A-4C; in each case, until their respective
Certificate Balances are reduced to zero;
(v) with respect to the Class B Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest B-1; second, to REMIC II Regular Interest B-2; and
third, to REMIC II Regular Interest B-3; in each case, until their respective
Certificate Balances are reduced to zero;
(vi) with respect to the Class D Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest D-1; and second, to REMIC II Regular Interest D-2; in
each case, until their respective Certificate Balances are reduced to zero;
(vii) with respect to the Class E Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest E-1; and second, to REMIC II Regular Interest E-2; in
each case, until their respective Certificate Balances are reduced to zero;
(viii) with respect to the Class G Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest G-1; and second, to REMIC II Regular Interest G-2; in
each case, until their respective Certificate Balances are reduced to zero; and
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(ix) with respect to the Class L Certificates, shall be
deemed to have first been distributed from REMIC II to REMIC III in respect of
REMIC II Regular Interest L-1; and second, to REMIC II Regular Interest L-2; in
each case, until their respective Certificate Balances are reduced to zero.
(b) All distributions made in respect of the Class X-1 and Class
X-2 Certificates on each Distribution Date pursuant to Section 6.5 or Section
10.1, and allocable to any particular Component of such Class of Certificates in
accordance with the definitions of "Class X-1 Strip Rate" and "Class X-2 Strip
Rate" and distributed in accordance with Section 6.5(a), shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of such Component's
Corresponding REMIC II Regular Interest. All distributions of reimbursements of
Realized Losses made in respect of any Class of Principal Balance Certificates
on each Distribution Date pursuant to Section 6.5 shall be deemed to have first
been distributed from REMIC II to REMIC III in respect of its Corresponding
REMIC II Regular Interest set forth in the Preliminary Statement hereto;
provided, however, that distributions of reimbursements of Realized Losses shall
be deemed to have been distributed among two or more Corresponding REMIC II
Regular Interests that correspond to a Class of Principal Balance Certificates
in the reverse order of the priority set forth in Section 6.6(d) for allocation
for Realized Losses, up to the amount of Realized Losses previously allocated to
such REMIC II Regular Interest. Any amounts remaining in the Distribution
Account with respect to REMIC II on any Distribution Date after the foregoing
distributions shall be distributed to the holders of the Class R-II
Certificates.
Section 6.4 Reserved.
Section 6.5 REMIC III.
(a) On each Distribution Date, the Paying Agent shall withdraw
from the Distribution Account an amount equal to the Available Distribution
Amount and shall distribute such amount (other than the amount attributable to
any Excess Interest, which shall be distributed in accordance with Section
6.5(c)) and Excess Liquidation Proceeds) in the following amounts and order of
priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class X-1 Certificates, 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 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 and Class A-4 Certificates, in reduction of the
Certificate Balances thereof, in an amount up to the remaining Principal
Distribution Amount for such Distribution Date (after the distributions
described in clause (ii) above): first, to the Holders of the Class A-1
Certificates, the Principal Distribution Amount for such Distribution Date
(reduced by any prior distributions
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thereof hereunder) 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 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-3 and 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, the
Class X-1 Certificates and the Class X-2 Certificates, pro rata in proportion to
their respective entitlements to reimbursement described in this clause
(treating principal and interest losses separately), to reimburse any Realized
Losses previously allocated thereto and not previously fully reimbursed (in the
case of the Class X Certificates, insofar as Realized Losses have resulted in
shortfalls in the amount of interest distributed other than by reason of a
reduction of the Notional Amount), plus interest at the applicable Pass-Through
Rate on such Realized Losses;
(v) to the Holders of the Class A-M Certificates, the
Distributable Certificate Interest in respect of such Class of Certificates 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-M Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class A-M
Certificates has been reduced to zero;
(vii) to the Holders of the Class A-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;
(viii) to the Holders of the Class A-J Certificates,
Distributable Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the
Class A-M Certificates, to the Holders of the Class A-J Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
of the Principal Distribution Amount distributed to the Holders of the Class A
Senior and Class A-M Certificates), until the Certificate Balance of the Class
A-J Certificates has been reduced to zero;
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(x) 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;
(xi) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(xii) 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;
(xiii) 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;
(xiv) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(xv) 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;
(xvi) 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;
(xvii) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xviii) 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;
(xix) 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;
(xx) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxi) 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;
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(xxii) 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;
(xxiii) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiv) 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;
(xxv) 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;
(xxvi) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxvii) 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;
(xxviii) 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;
(xxix) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxx) 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;
(xxxi) 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;
(xxxii) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxiii) 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;
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(xxxiv) 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;
(xxxv) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxvi) 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;
(xxxvii) 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;
(xxxviii) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxix) 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;
(xl) 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;
(xli) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xlii) 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;
(xliii) 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;
(xliv) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distribution Date;
(xlv) 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;
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(xlvi) 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;
(xlvii) to the Holders of the Class O Certificates,
Distributable Certificate Interest for such Distribution Date;
(xlviii) 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;
(xlix) 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;
(l) to the Holders of the Class P Certificates,
Distributable Certificate Interest for such Distribution Date;
(li) 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;
(lii) to the Holders of the Class P Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses; and
(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 (including interest
thereon) previously allocated to each Holder have been reimbursed to the Holders
of the REMIC Regular Certificates, any amounts remaining of Available
Distribution Amount on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date
occurring on or after the earliest date, if any, upon which the Aggregate
Certificate Balance of all Classes of Subordinate Certificates has been reduced
to zero, or the aggregate Appraisal Reduction in effect is greater than or equal
to the Aggregate Certificate Balance of all Classes of Subordinate Certificates,
the Principal Distribution Amount will be distributed: first to the Class A-1,
Class A-2, Class A-3, Class A-AB and Class A-4 Certificates, pro rata, based on
their respective Certificate Balances, in reduction of their respective
Certificate Balances, until the Certificate Balance of each such Class is
reduced to zero; and second to the Class A-1, Class A-2, Class A-3, Class A-AB
and Class A-4 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses previously allocated to 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 A-1A, X-0X, X-0X, X-0X, X-0X, X-0X, X-XXX,
X-XXX, X-0X, X-0X and A-4C; provided that sequential
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payments shall be made to the REMIC II Regular Interests as set forth in clauses
(i) through (iv) of Section 6.3(a).
(b) On each Distribution Date, the Paying Agent shall withdraw
amounts in the Reserve Account and shall pay the Certificateholders on such
Distribution Date such amounts in the following priority:
(i) First, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation (provided that the
Class A-M Certificates will be senior in right the Class A-J Certificates)) for
any, and to the extent of, Unpaid Interest;
(ii) Second, to reimburse the Holders of the Principal
Balance Certificates (in order of alphabetical Class designation (provided that
the Class A-M Certificates will be senior in right the Class A-J Certificates))
for any, and to the extent of, Realized Losses previously allocated to them; and
(iii) Third, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement
of Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw
from the Excess Interest Sub-account any Excess Interest on deposit therein, and
the Paying Agent shall pay such Excess Interest on such Distribution Date to the
Holders of the Class P Certificates (even if the Certificate Balance of the
Class P Certificates has been reduced to zero for any reason).
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; and
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances and treated as
Realized Principal Losses to the extent so allocated (and shall proportionately
reduce the Certificate Balance of each REMIC I Regular Interest) after making
all other allocations for such Distribution Date.
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(b) If the Master Servicer, the Special Servicer or the Trustee
determines that an Advance previously made by it (whether such Advance (together
with Advance Interest thereon) was in respect of principal or interest on the
related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance and
the Master Servicer withdraws the amount of such Advance from the Certificate
Account pursuant to Section 5.2(a) hereof (which amount shall be treated as an
Available Advance Reimbursement Amount pursuant to Section 4.6) or if the Master
Servicer determines that any Unliquidated Advance has become a Nonrecoverable
Advance, the Master Servicer (after consultation with the Special Servicer)
shall compute the Realized Loss with respect to such Mortgage Loan (and the
Paying Agent shall allocate the Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account shall
be treated as Realized Principal Losses up to the amount of the aggregate amount
in the Collection Account allocable to principal received with respect to the
Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount, and shall be allocated to the
Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and
to the extent that any Realized Principal Loss exceeds the Certificate Balance
of the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal would
otherwise be paid on such Distribution Date, in proportion to such principal
payments; and
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(ii) if the amount that the Master Servicer withdraws from
the Certificate Account as referenced in clause (b)(i) above exceeds such amount
allocable to principal received with respect to the Mortgage Loans for such
Collection Period, then such additional amounts shall constitute Unpaid
Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata
basis based upon the amount of accrued and unpaid interest thereon.
(c) If (x) a Final Recovery Determination is made with respect to
any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances and Realized Losses were
computed and allocated pursuant to clauses (a) and (b) above, and (y) amounts
are recovered thereafter:
(i) the portion of the amount of collections recovered on
the Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal shall be applied by the Paying Agent first, to make
payments of principal on the Corresponding REMIC I Regular Interest up to an
amount equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest (and
the Principal Balance of the Mortgage Loan and the related Certificate Balance
of the Corresponding REMIC I Regular Interest shall be correspondingly
increased), and thereafter to make payments of principal to the Corresponding
REMIC I Regular Interests with respect to which principal distributions were
reduced pursuant to Section 6.6(b)(i) above, in proportion to the amount of such
reductions; and
(ii) the portion of the amount recovered on the Mortgage
Loan that is identified and applied by the Master Servicer as recoveries of
interest shall be applied by the Paying Agent to make payments of Unpaid
Interest on the REMIC I Regular Interests with respect to which Unpaid Interest
was allocated pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses on
the REMIC I Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the
Corresponding REMIC II Regular Interests in the amounts and in the manner as are
allocated to the REMIC III Regular Interests related thereto pursuant to Section
6.6(f); provided, however, that Realized Losses shall be allocated among two or
more Corresponding REMIC II Regular Interests that correspond to a Class of
Principal Balance Certificates sequentially in alphabetical and numerical order.
Realized Losses allocated to the Class X Certificates shall reduce the amount of
interest payable on the REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest A-2C, REMIC II Regular Interest A-2D, REMIC II Regular
Interest A-3, 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-M, REMIC II Regular Interest A-J,
REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest B-3, REMIC II Regular Interest C, 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, REMIC II Regular Interest K, REMIC II Regular Interest L-1, REMIC II Regular
Interest L-2, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II
Regular Interest O and REMIC II Regular Interest P, which reduction shall be
allocated pro rata based on the product of the Certificate Balance of such REMIC
II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2
Strip Rate (if any) applicable to the Class of Certificates relating to such
REMIC II Regular Interest.
(e) Reserved.
(f) REMIC III. On each Distribution Date, all Realized Losses on
the REMIC II Regular Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the REMIC III Regular Interests in Reverse Sequential Order, in each case
reducing (A) first, the Certificate Balance of such Class until such Certificate
Balance is reduced to zero (in the case of the REMIC III Regular Interests other
than the Class X Certificates); (B) second, Unpaid Interest owing to such Class
to the extent thereof and (C) third, Distributable Certificate Interest owing to
such Class, provided, that such reductions shall be allocated among the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, Class A-4 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 Regular
Certificates below the sum of the Aggregate Certificate Balances of the REMIC II
Regular Interests.
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate
Prepayment Interest Shortfalls.
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(a) On each Distribution Date, the amount of any Net Aggregate
Prepayment Interest Shortfalls in REMIC I shall be allocated among the REMIC I
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC I Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any Net Aggregate Prepayment Interest
Shortfalls in REMIC II shall be allocated among the REMIC II Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC
II Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. On each Distribution Date, the
amount of any Net Aggregate Prepayment Interest Shortfalls in REMIC III 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 and 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 Loan, if the Principal Balance of such Mortgage Loan, Loan
Pair or A/B Mortgage Loan exceeds $2,000,000 or (B) at the option of the Special
Servicer, if such Principal Balance is less than or equal to $2,000,000, either
an internal valuation prepared by the Special Servicer in accordance with MAI
standards or an Appraisal which in all cases shall be completed as of the date
that such Mortgage Loan, Loan Pair or A/B Mortgage Loan becomes a Required
Appraisal Loan; provided that if the Special Servicer had completed or obtained
an Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall have
no duty to prepare a new Appraisal or internal valuation, unless such reliance
would not be in accordance with the Servicing Standard; provided, further, that
if the Special Servicer is required to obtain an Appraisal of a Mortgaged
Property after receipt of the notice described in clause (ii) of the definition
of Appraisal Event, such Appraisal will be obtained no later than 60 days after
receipt of such notice and an internal valuation will be obtained no later than
60 days after receipt of such notice. Notwithstanding the foregoing, an
Appraisal shall not be required so long as a guaranty or surety bond that is
rated at least "BBB-" (or its equivalent) by a nationally recognized statistical
rating organization, or debt service reserve or a letter of credit is available
and has the ability to pay off the then outstanding Principal Balance of the
Mortgage Loan in full, except to the extent that the Special Servicer, in
accordance with the Servicing Standard, determines that obtaining an Appraisal
is in the best interests of the Certificateholders. Such Appraisal or valuation
shall be conducted in accordance with the definition of "market value" as set
forth in 12 C.F.R. ss. 225.62 and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal or valuation, if not performed by the Special Servicer, shall be
an expense of the Trust (and any related B Note) and may be paid from REO Income
or, to the extent collections from such related Mortgage Loan, B Note, Loan Pair
or Mortgaged Property does not
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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 annually. Notwithstanding
the foregoing, the terms of this Section 6.9 shall not be applicable to any
Non-Serviced Mortgage Loan if the applicable Non-Serviced Mortgage Loan Special
Servicer shall have performed such obligations with respect to such Mortgage
Loan pursuant to the terms of the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
Section 6.10 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement to the contrary, the
Paying Agent on behalf of the Trustee shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest,
original issue discount, or other amounts that the Paying Agent reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for any such withholding and any amount so withheld shall be
regarded as distributed to the related Certificateholders for purposes of this
Agreement. In the event the Paying Agent withholds any amount from payments made
to any Certificateholder pursuant to federal withholding requirements, the
Paying Agent shall indicate to such Certificateholder the amount withheld. The
Trustee shall not be responsible for the Paying Agent's failure to comply with
any withholding requirements.
Section 6.11 Prepayment Premiums. Any Prepayment Premium
collected with respect to a Mortgage Loan (but not a B Note or Serviced
Companion Mortgage Loan, which Prepayment Premium is payable to the Holder of
the related B Note or the Holder of the related Serviced Companion Mortgage
Loan, as applicable) during any particular Collection Period will be deemed
distributed to the Trustee by the Paying Agent on the following Distribution
Date as follows: (i) first, the Paying Agent shall be deemed to distribute to
the Trustee, as Holder of the REMIC I Regular Interest to which such Mortgage
Loan relates, any Prepayment Premiums collected on or with respect to such
Mortgage Loan; and (ii) second, the Paying Agent shall be deemed to distribute
to the Trustee, as Holder of the REMIC II Regular Interests, any Prepayment
Premiums deemed distributed to the REMIC I Regular Interests, and shall be
deemed to distribute such Prepayment Premiums to the REMIC II Regular Interest
then entitled to distributions of principal from the Principal Distribution
Amount (or, if more than one Class of REMIC II Regular Interests is then
entitled to distributions of principal from the Principal Distribution Amount,
such Prepayment Premiums shall be deemed distributed among such Classes pro rata
in accordance with the relevant amounts of entitlements to distributions of
principal). Following such deemed distributions, the Holders of the respective
Classes of Principal Balance Certificates (other than the Class J, Class K,
Class L, Class M, Class N, Class O and Class P Certificates), then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Paying Agent on behalf of the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, the numerator of which is the amount
distributed as principal to the Holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
Holders of all Classes of Certificates on that Distribution
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Date, (b) the Base Interest Fraction for the related Principal Prepayment and
that Class of Certificates and (c) the amount of the Prepayment Premiums
collected in respect of such Principal Prepayment during the related Collection
Period. Any portion of any such Prepayment Premium that is not so distributed to
the Holders of such Principal Balance Certificates will be distributed to the
Holders of the Class X Certificates. On any Distribution Date on or before the
Distribution Date in October 2011, 59% of the Prepayment Premium that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X-1 Certificates and 41% of the
Prepayment Premium that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X-2
Certificates. After the Distribution Date in October 2011, any portion of such
Prepayment Premium that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X-1
Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND THE LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent.
(a) The Trustee and the Paying Agent each shall undertake to
perform only those duties as are specifically set forth in this Agreement and no
implied covenants or obligations shall be read into this Agreement against the
Trustee or the Paying Agent. Any permissive right of the Trustee or the Paying
Agent provided for in this Agreement shall not be construed as a duty of the
Trustee or the Paying Agent. The Trustee and the Paying Agent each shall
exercise such of the rights and powers vested in it by this Agreement and
following the occurrence and during the continuation of any Event of Default
hereunder, the Trustee and the Paying Agent each shall use the same degree of
care and skill in its exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such Person's own affairs.
(b) The Trustee or the Paying Agent, as applicable, upon receipt
of all resolutions, certificates, statements, opinions, reports, documents,
orders or other instruments furnished to the Trustee or the Paying Agent , as
the case may be, which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they on
their face conform to the requirements of this Agreement; provided that the
Trustee or the Paying Agent, as the case may be, shall not be responsible for
the accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Master Servicer or
any other Person to it pursuant to this Agreement. If any such instrument is
found on its face not to conform to the requirements of this Agreement, the
Trustee or the Paying Agent shall request the providing party to correct the
instrument and if not so corrected, the Paying Agent shall inform the
Certificateholders.
(c) Neither the Trustee nor the Paying Agent nor any of their
respective directors, officers, employees, agents or Controlling Persons shall
have any liability to the Trust or the Certificateholders arising out of or in
connection with this Agreement, except for their respective negligence or
willful misconduct. No provision of this Agreement shall be construed to relieve
the Trustee, the Paying Agent or any of their respective directors, officers,
employees, agents or Controlling Persons from liability for their own negligent
action, their own negligent failure to act or their own willful misconduct or
bad faith; provided that:
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(i) neither the Trustee nor the Paying Agent nor any of
their respective directors, officers, employees, agents or Controlling Persons
shall be personally liable with respect to any action taken, suffered or omitted
to be taken by it in its reasonable business judgment in accordance with this
Agreement or at the direction of Holders of Certificates evidencing not less
than a majority of the outstanding Certificate Balance of the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee or the Paying Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it;
(iii) neither the Trustee, nor the Paying Agent nor any of
their respective directors, officers, employees, agents or Controlling Persons
shall be responsible for any act or omission of the Master Servicer, the Special
Servicer, the Depositor or either Seller, or for the acts or omissions of each
other, including, without limitation, in connection with actions taken pursuant
to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) neither the Trustee nor the Paying Agent shall be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties as Trustee or the Paying Agent, as applicable in
accordance with this Agreement. In such event, all legal expense and costs of
such action shall be expenses and costs of the Trust, and the Trustee and the
Paying Agent shall be entitled to be reimbursed therefor from the Certificate
Account pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee nor the Paying Agent shall 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 or the Paying Agent may be required to act, unless a Responsible Officer
of the Trustee or the Paying Agent, as the case may be, obtains actual knowledge
of such failure.
(d) For so long as the Certificates are listed on the Luxembourg
Stock Exchange, the Depositor shall cause the continuing obligations under the
listing rules for the Luxembourg Stock Exchange to be complied with in respect
of the Certificates. The Trustee and the Paying Agent shall not be liable for a
failure in compliance with such continuing obligations under the listing rules
of the Luxembourg Stock Exchange if such failure is caused by the negligence or
willful misconduct of the Luxembourg Paying Agent.
Section 7.2 Certain Matters Affecting the Trustee and the Paying
Agent.
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(a) Except as otherwise provided in Section 7.1:
(i) the Trustee and the Paying Agent each may request, and
may rely and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee and the Paying Agent each may consult with
counsel and the advice of such counsel and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) neither the Trustee nor the Paying Agent nor any of
their respective directors, officers, employees, agents or Controlling Persons
shall be personally liable for any action taken, suffered or omitted by such
Person in its reasonable business judgment and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this Agreement
or to institute, conduct or defend any litigation hereunder or relating hereto
or make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Certificate Balance of the Certificates then
outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee and the Paying Agent each may execute any of
the trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, which agents or attorneys shall have any
or all of the rights, powers, duties and obligations of the Trustee and the
Paying Agent conferred on them by such appointment; provided that each of the
Trustee and the Paying Agent, as the case may be, shall continue to be
responsible for its duties and obligations hereunder and shall not be liable for
the actions or omissions of the Master Servicer, the Special Servicer, the
Depositor or the actions or omissions of each other;
(vi) neither the Trustee nor the Paying Agent shall be
required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Paying Agent shall be
required to expend its own funds or otherwise incur any financial liability in
the performance of any of its
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duties hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such liability is not
assured to it;
(viii) neither the Trustee nor the Paying Agent shall be
liable for any loss on any investment of funds pursuant to this Agreement;
(ix) unless otherwise specifically required by law, neither
the Trustee nor the Paying Agent shall be required to post any surety or bond of
any kind in connection with the execution or performance of its duties
hereunder; and
(x) except as specifically provided hereunder in connection
with the performance of its specific duties, neither the Trustee nor the Paying
Agent shall be responsible for any act or omission of the Master Servicer, the
Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only to the extent such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only to the extent such taxes arise out of a breach by the Paying
Agent of its obligations hereunder, which breach constitutes negligence or
willful misconduct of the Paying Agent.
Section 7.3 The Trustee and the Paying Agent Not Liable for
Certificates or Interests or Mortgage Loans. The Trustee and the Paying Agent
each makes no representations as to the validity or sufficiency of this
Agreement, the information contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final
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Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee and
the Paying Agent represents that, assuming due execution and delivery by the
other parties hereto, this Agreement has been duly authorized, executed and
delivered by it and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms except that such enforceability may be
subject to (A) applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law and (ii) the Trustee represents that, assuming
due execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law. None
of the Trustee or the Paying Agent shall be accountable for the use or
application by the Depositor or the Master Servicer or the Special Servicer or
by each other of any of the Certificates or any of the proceeds of such
Certificates, or for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of funds paid in consideration
of the assignment of the Mortgage Loans to the Trust or deposited into the
Distribution Account or any other fund or account maintained with respect to the
Certificates or any account maintained pursuant to this Agreement or for
investment of any such amounts. No recourse shall be had for any claim based on
any provisions of this Agreement, the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement, the
Prospectus or the Certificates (except with respect to the Trustee to the extent
of information furnished by the Trustee under the caption entitled "TRANSACTION
PARTIES--The Trustee and the Custodian" and with respect to the Paying Agent, to
the extent of information furnished by the Paying Agent under the caption
"TRANSACTION PARTIES--The Paying Agent, Certificate Registrar and Authenticating
Agent" each in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement), the Mortgage Loans or the assignment thereof against the Trustee or
the Paying Agent in such Person's individual capacity and any such claim shall
be asserted solely against the Trust or any indemnitor who shall furnish
indemnity as provided herein. Neither the Trustee nor the Paying Agent shall be
liable for any action or failure of any action by the Depositor or the Master
Servicer or the Special Servicer or by each other hereunder. Neither the Trustee
nor the Paying Agent shall at any time have any responsibility or liability for
or with respect to the legality, validity or enforceability of the Mortgages or
the Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this 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
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representation made under this Agreement or in any related document prior to the
receipt by a Responsible Officer of the Trustee of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies by
or at the direction of the Master Servicer or the Special Servicer or any loss
resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or
the Special Servicer to act or perform any duties required of it on behalf of
the Trustee hereunder; or any action by the Trustee taken at the instruction of
the Master Servicer or the Special Servicer.
Section 7.4 The Trustee and the Paying Agent May Own
Certificates. Each of the Trustee and the Paying Agent in its individual or any
other capacity may become the owner or pledgee of Certificates with the same
rights it would have if it were not the Trustee or the Paying Agent, as the case
may be.
Section 7.5 Eligibility Requirements for the Trustee and the
Paying Agent. The Trustee hereunder shall at all times be (i) an institution
insured by the FDIC, (ii) a corporation, national bank or national banking
association, organized and doing business under the laws of the United States of
America or of any state, authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "Prime-1" by Xxxxx'x and whose long-term senior unsecured debt is at all
times rated not less than "AA-" by Fitch (or "A+" by Fitch if the Trustee's
short-term unsecured debt is rated at least "F-1" by Fitch) and "Aa3" by
Xxxxx'x, provided, that if a Fiscal Agent meeting the requirements of Section
7.19(a) is then currently acting in such capacity, and has a long term unsecured
debt rating of at least "AA-" by Fitch (or "A+" by Fitch if the Fiscal Agent's
short-term unsecured debt is rated at least "F-1" by Fitch), and "Aa3" by
Xxxxx'x, then the Trustee must be rated not less than "A-" by Fitch and "A3" by
Xxxxx'x, or otherwise acceptable to the Rating Agencies as evidenced by a Rating
Agency Confirmation. If such corporation, national bank or national banking
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by Fitch and "A2" by Xxxxx'x, unless and to the extent Rating
Agency Confirmation is obtained.
Section 7.6 Resignation and Removal of the Trustee or the Paying
Agent.
(a) The Trustee or the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master 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
promptly appoint a successor trustee or paying agent, as the case may be, except
in the case of the initial Trustee, in which case both shall be so replaced but
may be replaced
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under this paragraph sequentially, by written instrument, one copy of which
instrument shall be delivered to the resigning Trustee, one copy to the
successor trustee and one copy to each of the Master Servicer, the Paying Agent
and the Rating Agencies. If no successor trustee or paying agent shall have been
so appointed, as the case may be, and shall have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee or
the Paying Agent, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee or paying agent, as the
case may be. It shall be a condition to the appointment of a successor trustee
that such entity satisfies the eligibility requirements set forth in Section 7.5
and, for so long as the Trust, and, with respect to any Serviced Companion
Mortgage Loan, the trust in the related Other Securitization, are subject to the
reporting requirements of the Exchange Act, shall have been consented to by the
Depositor or the depositor in such Other Securitization, as the case may be
(which consent shall not be unreasonably withheld).
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 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) Following the Closing Date, for so long as the Trust, and,
with respect to any Serviced Companion Mortgage Loan, the trust in the related
Other Securitization, are subject to the reporting requirements of the Exchange
Act, the Paying Agent may not appoint any sub-servicer that is or could become a
Reporting Servicer without the prior written consent of the Depositor or the
depositor in such Other Securitization, as the case may be, which consent shall
not be unreasonably withheld.
(d) If at any time (i) the Paying Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(b) and shall fail to
resign after written request therefor by the Depositor, (ii) the Paying Agent
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of the Paying Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust or
any REMIC Pool by any state in which the Paying Agent is located solely because
of the location of the Paying Agent in such state; provided, however, that, if
the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this
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clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by the Rating Agencies, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master Servicer
and the Rating Agencies. In all such cases, the Paying Agent shall bear all
costs of transfer to a successor Paying Agent, such succession only to take
effect after a successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Certificate
Balance of the Principal Balance Certificates then outstanding may for cause
upon 30 days' written notice to the Trustee or the Paying Agent, as the case may
be, and to the Depositor remove the Trustee or the Paying Agent, as the case may
be, by such written instrument, signed by such Holders or their attorney-in-fact
duly authorized, one copy of which instrument shall be delivered to the
Depositor and one copy to the Trustee or the Paying Agent, as the case may be,
so removed; the Depositor shall thereupon use its best efforts to appoint a
successor Trustee or Paying Agent, as the case may be, in accordance with this
Section.
(f) Any resignation or removal of the Trustee or the Paying
Agent, as the case may be, and appointment of a successor trustee or paying
agent pursuant to any of the provisions of this Section shall become effective
upon acceptance of appointment by the successor trustee or paying agent, as the
case may be, as provided in Section 7.7. Upon any succession of the Trustee or
the Paying Agent under this Agreement, the predecessor Trustee or Paying Agent,
as the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee or the Paying Agent shall not be liable for any action or
omission of any successor Trustee or Paying Agent, as the case may be.
Section 7.7 Successor Trustee or Paying Agent.
(a) Any successor Trustee or Paying Agent appointed as provided
in Section 7.6 shall execute, acknowledge and deliver to the Depositor and to
its predecessor Trustee or Paying Agent, as the case may be, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee or Paying Agent, as the case may be, shall become
effective and such successor Trustee or Paying Agent, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Paying Agent herein. The
predecessor Trustee or Paying Agent shall deliver (at such predecessor's own
expense) to the successor Trustee or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee or
Paying Agent, as the case may be, shall also deliver all records or copies
thereof maintained by the predecessor Trustee or Paying Agent in the
administration hereof as may be reasonably requested by the successor Trustee,
or Paying Agent,
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as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment
as provided in this Section unless at the time of such appointment such
successor Trustee or Paying Agent, as the case may be, shall be eligible under
the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or
Paying Agent as provided in this Section, the successor Trustee or Paying Agent
shall mail notice of the succession of such Trustee or Paying Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies. The expenses of such mailing shall be borne
by the successor Trustee or Paying Agent. If the successor Trustee or Paying
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee or Paying Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
Section 7.8 Merger or Consolidation of Trustee or Paying Agent.
Any Person into which the Trustee or Paying Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee or Paying Agent shall be a
party, or any Persons succeeding to the business of such Trustee or Paying
Agent, shall be the successor of such Trustee or Paying Agent, as the case may
be, hereunder, as applicable, provided that (i) such Person shall be eligible
under the provisions of Section 7.5, and (ii) for so long as the Trust, and,
with respect to any Serviced Companion Mortgage Loan, the trust in the related
Other Securitization, are subject to the reporting requirements of the Exchange
Act, shall have been consented to by the Depositor or the depositor in such
Other Securitization, as the case may be, (which consent shall not be
unreasonably withheld), without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents
or Custodian.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan
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is located or in any state in which any portion of the Trust is located. The
separate trustees, co-trustees, or custodians so appointed shall be trustees or
custodians for the benefit of all the Certificateholders, shall have such
powers, rights and remedies as shall be specified in the instrument of
appointment and shall be deemed to have accepted the provisions of this
Agreement; provided that no such appointment shall, or shall be deemed to,
constitute the appointee an agent of the Trustee; provided, further that the
Trustee shall be liable for the actions of any co-trustee or separate trustee
appointed by it and shall have no liability for the actions of any co-trustee or
separate trustee appointed by the Depositor or the Certificateholders pursuant
to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody and payment of moneys shall
be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
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(d) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall
not be unreasonably withheld, the Trustee, at its sole cost and expense, may
appoint at any time a successor Custodian. Until such time as the Trustee
appoints a successor Custodian, the Trustee shall be the Custodian hereunder.
Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
Section 7.10 Authenticating Agents.
(a) The Paying Agent shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Any successor Authenticating Agent must be acceptable to the Depositor and must
be a corporation or national bank organized and doing business under the laws of
the United States of America or of any state and having a principal office and
place of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
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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; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as Paying Agent hereunder. Upon receiving a notice of resignation or
upon such a termination, or in case at any time the Authenticating Agent shall
cease to be eligible in accordance with the provisions of Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Section 7.11 Indemnification of Trustee and the Paying Agent.
(a) The Trustee, the Certificate Registrar and the Paying Agent
and each of their respective directors, officers, employees, agents and
Controlling Persons shall be entitled to indemnification from the Trust for any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action incurred without negligence or willful
misconduct on their respective part, arising out of, or in connection with this
Agreement, the Certificates and the acceptance or administration of the trusts
or duties created hereunder (including, without limitation, any unanticipated
loss, liability or expense incurred in connection with any action or inaction of
the Master Servicer, the Special Servicer or the Depositor or of each other such
Person hereunder but only to the extent the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, is unable to recover within a
reasonable period of time such amount from such third party pursuant to this
Agreement) including the costs and expenses of defending themselves against any
claim in connection with the exercise or performance of any of their powers or
duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent
and each of their respective directors, officers, employees, agents and
Controlling Persons shall be entitled to indemnification from the Trust for any
unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee, the Certificate Registrar and the Paying Agent of the
reports required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be, shall have given
the Depositor, the Master Servicer, the Sellers, each other and the Holders of
the Certificates written notice thereof promptly after a Responsible Officer of
the Trustee, the Certificate Registrar or the Paying
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Agent, as the case may be, shall have actual knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Certificate Registrar's or Paying Agent's, as the case may be, rights
to indemnification herein unless the Depositor's defense of such claim on behalf
of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the
Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
shall cooperate and consult fully with the Depositor in preparing such defense;
and
(iii) notwithstanding anything to the contrary in this
Section 7.11, the Trust shall not be liable for settlement of any such claim by
the Trustee, the Certificate Registrar or the Paying Agent, as the case may be,
entered into without the prior consent of the Depositor, which consent shall not
be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee,
the Certificate Registrar or the Paying Agent, as the case may be, their
respective directors, officers, employees or agents and Controlling Persons from
and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Trustee, the Certificate Registrar or
the Paying Agent, as the case may be, their respective directors, officers,
employees or agents or Controlling Person may become subject under the
Securities Act, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or
arises out of, or is based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made, not
misleading and shall reimburse the Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person for any legal and other expenses
reasonably incurred by the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, or any such director, officer, employee, agent or
Controlling Person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, that the Depositor
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission made in any such Private
Placement Memorandum, Preliminary Prospectus Supplement, Final Prospectus
Supplement or Prospectus in reliance upon and in conformity with written
information concerning the Trustee, the Certificate Registrar or the Paying
Agent, as the case may be, furnished to the Depositor by or on behalf of such
person specifically for inclusion therein. It is hereby expressly agreed that
the only written information provided by the Trustee, the Certificate Registrar
or the Paying Agent, as the case may be, for inclusion in the Preliminary
Prospectus Supplement and Final Prospectus Supplement is set forth in the case
of the Trustee in the second, fourth and fifth sentences under the caption
entitled "TRANSACTION PARTIES--The Trustee and the Custodian" and in the case of
the Paying Agent, the third and fourth sentences under the "TRANSACTION
PARTIES--The Paying Agent, the Certificate Registrar
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and the Authenticating Agent". The Trustee, the Certificate Registrar or the
Paying Agent, as the case may be, shall immediately notify the Depositor and the
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, the Certificate Registrar or
the Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent. The Depositor shall not be indemnified by the Trust for any
expenses incurred by the Depositor arising from any violation or alleged
violation of the Securities Act or Exchange Act by the Depositor.
Section 7.12 Fees and Expenses of Trustee and the Paying Agent.
The Trustee shall be entitled to receive the Trustee Fee (other than the portion
thereof constituting the Paying Agent Fee) and the Paying Agent shall be
entitled to receive the Paying Agent Fee, pursuant to Section 5.3(b)(ii) (which
shall not be limited by any provision of law with respect to the compensation of
a trustee of an express trust), for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties respectively, hereunder of the Trustee and the Paying Agent.
The Trustee and the Paying Agent shall also be entitled to recover from the
Trust all reasonable unanticipated expenses and disbursements incurred or made
by the Trustee and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in its
employ), not including expenses incurred in the ordinary course of performing
its duties as Trustee or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee or
the Paying Agent.
Section 7.13 Collection of Moneys. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
Section 7.14 Trustee To Act; Appointment of Successor.
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(a) On and after the time the Master Servicer is terminated
pursuant to this Agreement, the Trustee shall be the successor in all respects
to the Master Servicer in its capacity under this Agreement and the transactions
set forth or provided for therein and shall have all the rights and powers and
be subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer by the terms and provisions
of this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement), except any ongoing obligations to the Primary
Servicer arising after the termination of the Master Servicer from their
servicing rights and obligations under the Primary Servicing Agreement. In the
Trustee's capacity as such successor, the Trustee shall have the same
limitations on liability granted to the Master Servicer in this Agreement. As
compensation therefor, the Trustee shall be entitled to receive all the
compensation payable to the Master Servicer set forth in this Agreement,
including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000, meeting such other standards for a successor servicer as
are set forth in this Agreement and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Master Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
servicer as Master Servicer hereunder. Pending any such appointment, the Trustee
shall act as the Master Servicer as hereinabove provided. Any entity designated
by the Trustee as successor Master Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for the Master Servicer as
set forth herein. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree subject to
Section 8.10, provided that no such compensation shall be in excess of that
permitted to be paid to the Master Servicer under this Agreement. The Trustee
and such successor shall take such actions, consistent with this Agreement as
shall be necessary to effectuate any such succession. The Master Servicer shall
cooperate with the Trustee and any successor servicer in effecting the
termination of the Master Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of the assignment
of the servicing function and providing the Trustee and successor servicer all
documents 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
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Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Master Servicer by the Trust within 30 days of the Trustee's
submission of an invoice with respect thereto, to the extent such expenses have
not been reimbursed by the Master Servicer as provided herein; such expenses
paid by the Trust shall be deemed to be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, the Trustee shall
be the successor in all respects to the Special Servicer in its capacity under
this Agreement and the transactions set forth or provided for therein and shall
have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Special Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation (other than any Work-Out Fee
payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee
shall be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions 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
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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, or an
Event of Default by, the Master Servicer, the Paying Agent or the Special
Servicer, or appointment of a successor to the Master Servicer, the Paying Agent
or the Special Servicer, the Trustee shall promptly mail notice thereof by first
class mail to the Rating Agencies, the Operating Adviser, the Sellers and the
Certificateholders at their respective addresses appearing on the Certificate
Register.
Section 7.16 Representations and Warranties of the Trustee and
the Paying Agent.
(a) The Trustee hereby represents and warrants as of the date
hereof that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this
Agreement have been duly authorized by all necessary action on the part of the
Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will
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be obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Paying Agent hereby represents and warrants as of the
date hereof that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying
Agent of this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by
the Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the
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Paying Agent in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to
the best of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee and the Paying Agent. Each of the Trustee and
the Paying Agent, at its own respective expense, shall maintain in effect a
Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and
Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified
Insurer in form and in amount customary for trustees or paying agents in similar
transactions (unless the Trustee or the Paying Agent, as the case may be, self
insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the
Paying Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee or the Paying Agent, as the case may be, is not less than "Baa1" as
rated by Xxxxx'x, if rated by Xxxxx'x and "A" as rated by Fitch, respectively,
the Trustee or the Paying Agent, as the case may be, may self-insure for the
Fidelity Bond and the Errors and Omissions Insurance Policy.
Section 7.18 Appointment of Luxembourg Paying Agent; Notification
to Certificateholders.
(a) The Depositor shall maintain a paying agent in Luxembourg
(the "Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
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(b) For so long as the Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg
Paying Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual Period, the amount of principal and interest distributable on
the related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
(ii) to the Luxembourg Paying Agent on each Distribution
Date, the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following
receipt thereof, all notices and reports regarding any termination of the
Trustee or the Paying Agent or appointment of a successor to the Trustee or the
Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following
receipt thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to
the Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to
the Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg Stock
Exchange or any other stock exchange.
Section 7.19 Appointment of a Fiscal Agent.
(a) In order to satisfy the eligibility requirements of Section
7.5 (insofar as such requirements relate to ratings), the Trustee may appoint a
Fiscal Agent. Any Fiscal Agent shall at all times maintain a long-term unsecured
debt rating of no less than "AA-" from Fitch (or "A+" from Fitch, if such Fiscal
Agent's short-term unsecured debt rating is at least "F-1" by Fitch) and "Aa3"
from Xxxxx'x (or, in the case of either Rating Agency, such other rating as
shall not result in a downgrade, qualification or withdrawal of the rating by
the Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has
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failed to do so in accordance with the terms hereof, any Fiscal Agent appointed
by the Trustee shall make such Advance as and when required by the terms of this
Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that a Fiscal Agent makes an Advance pursuant to this
Section 7.19(b) or otherwise pursuant to this Agreement, the obligations of the
Trustee under this Agreement in respect of such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities that the Trustee is entitled to
hereunder as if it were the Trustee, except that all fees and expenses of any
Fiscal Agent (other than any interest owed to such Fiscal Agent in respect of
unreimbursed Advances) incurred by such Fiscal Agent in connection with the
transactions contemplated by this Agreement shall be borne by the Trustee, and
neither the Trustee nor such Fiscal Agent shall be entitled to reimbursement
therefor from any of the Trust, the Depositor, the Master Servicer or the
Special Servicer.
(d) The obligations of a Fiscal Agent set forth in this Section
7.19 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. A Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 7.5; provided that a Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 7.5). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of a Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
7.19(a) or (ii) the Trustee shall have received written confirmation from the
Rating Agencies that the succession of such proposed successor fiscal agent
would not, in and of itself, result in a downgrade, qualification or withdrawal
of the rating by the Rating Agencies of any Class of Certificates.
(e) The Trustee shall promptly notify the other parties hereto,
the Certificateholders and the holders of any Servicer Companion Mortgage Loan
in writing of the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Master Servicer shall service and administer the Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan in accordance with the Servicing Standard
and the terms of
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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 and the Paying Agent, the Operating
Adviser, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of a Loan Pair, the holder of the related
Serviced Companion Mortgage Loan, within two Business Days after becoming aware
(x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan
or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an Environmental
Insurance Policy, for as long as it is not a Specially Serviced Mortgage Loan,
if the Master Servicer has actual knowledge of any event giving rise to a claim
under an Environmental Insurance Policy, the Master Servicer or the Primary
Servicer shall notify the Special Servicer to such effect and the Master
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of such Environmental Insurance Policy to
make a claim thereunder and achieve the payment of all amounts to which the
Trust is entitled thereunder. Any legal fees or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with any such
claim shall be paid by, and reimbursable to, the Master Servicer or the Special
Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan, the Master Servicer shall give prompt written notice of such
extension to the insurer under the Environmental Insurance Policy and shall
execute such documents as are reasonably required by such insurer to procure an
extension of such policy (if available).
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(e) The parties hereto acknowledge that each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan is subject to the terms and
conditions of the related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loans are subject to the terms and conditions of the related
Intercreditor Agreement, and each such party agrees that the provisions of each
Loan Pair Intercreditor Agreement and Intercreditor Agreement that are required
by their terms to be set forth in this Agreement are hereby incorporated herein.
With respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, the Trustee, the Master Servicer and the Special Servicer
recognize the respective rights and obligations of the Trust and the holders of
each Serviced Companion Mortgage Loan under the related Loan Pair Intercreditor
Agreement, including, with respect to the allocation of collections on or in
respect of any Serviced Pari Passu Mortgage Loan and Serviced Companion Mortgage
Loan in accordance with the related Loan Pair Intercreditor Agreement. The
Master Servicer shall comply with the applicable provisions of each Loan Pair
Intercreditor Agreement, and if any Serviced Pari Passu Mortgage Loan and
Serviced Companion Mortgage Loan are then Specially Serviced Mortgage Loans, the
Special Servicer shall comply with the applicable provisions of the related Loan
Pair Intercreditor Agreement. The parties hereto agree that any conflict between
the terms of this Agreement and the terms of any Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable, shall be resolved in favor
of the Loan Pair Intercreditor Agreement or Intercreditor Agreement.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to each Non-Serviced Mortgage Loan Master Servicer, stating that,
as of the Closing Date, the Trustee is the holder of the applicable Non-Serviced
Mortgage Loan, and directing such Non-Serviced Mortgage Loan Master Servicer to
remit to the Master Servicer all amounts payable to, and directing such
Non-Serviced Mortgage Loan Master Servicer to forward, deliver or otherwise make
available, as the case may be, to, the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, such holder of the applicable
Non-Serviced Mortgage Loan under the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement.
(g) Each Non-Serviced Mortgage Loan shall be serviced and
administered by the applicable Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
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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
is not in any event less than "A" as rated by Fitch and "Baa1" as rated by
Xxxxx'x, respectively, the Master Servicer may self-insure for the Servicer
Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
Section 8.3 Master Servicer's General Power and Duties.
(a) The Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note and, in connection
with any Loan Pair, the holder of the Serviced Companion Mortgage Loan) and the
Trustee, customary consents or waivers and other instruments and documents
(including, without limitation, estoppel certificates, financing statements,
continuation statements, title endorsements and reports and other documents and
instruments necessary to preserve and maintain the lien on the related Mortgaged
Property and related collateral), (B) to consent to assignments and assumptions
or substitutions, and transfers of interest of any Mortgagor, in each case
subject to and in accordance with the terms of the related Mortgage Loan and
Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7,
to consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the 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,
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(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 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
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initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the
Trustee shall sign the Power of Attorney attached hereto as Exhibit S-1. The
Master Servicer, shall promptly notify the Trustee of the execution and delivery
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicer or the Special Servicer,
the Trustee shall execute and return to the Master Servicer, the Special
Servicer or the Primary Servicer any additional powers of attorney and other
documents necessary or appropriate to enable the Master Servicer and the Special
Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. The Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by the Master Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity, or (ii) knowingly take any action that causes the
Trustee to be registered to do business in any state, provided, however, that
the preceding clause (i) shall not apply to the initiation of actions relating
to a Mortgage Loan that the Master Servicer or the Special Servicer, as the case
may be, is servicing pursuant to its respective duties herein (in which case the
Master Servicer or the Special Servicer, as the case may be, shall give three
(3) Business Days prior notice to the Trustee of the initiation of such action).
The limitations of the preceding clause shall not be construed to limit any duty
or obligation imposed on the Trustee under any other provision of this
Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Primary Servicer on its behalf)
shall segregate and hold all funds collected and received pursuant to any
Mortgage Loan (other than any Non-Serviced Mortgage Loan) constituting Escrow
Amounts separate and apart from any of its own funds and general assets and
shall establish and maintain one or more segregated custodial accounts (each, an
"Escrow Account") into which all Escrow Amounts shall be deposited within one
(1) Business Day after receipt. Each Escrow Account shall be an Eligible
Account, except with respect to Mortgage Loans identified on Schedule VI for
which Escrow Accounts shall be transferred to Eligible Accounts at the earliest
date permitted under the related Mortgage Loan documents. The Master Servicer
shall also deposit into each Escrow Account any amounts representing losses on
Eligible Investments pursuant to the immediately succeeding paragraph and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
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(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 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
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schedule which will permit the Master Servicer to meet the payment obligations
for which the Escrow Account was established, and (ii) the Master Servicer shall
have no liability for any loss in investments of such funds that are invested
pursuant to written instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and the Paying Agent and to each other under
this Agreement is intended by the parties to be that of an independent
contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the
terms of the related Mortgage Loan, any Lock-Box Agreement or similar agreement,
the Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by the Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The Master Servicer shall apply
the funds deposited in such accounts in accordance with terms of the related
Mortgage Loan documents, any Lock-Box Agreement and in accordance with the
Servicing Standard.
(h) The Master Servicer or the Primary Servicer on its behalf
shall process all defeasances of Mortgage Loans in accordance with the terms of
the Mortgage Loan documents, and shall be entitled to any fees paid relating
thereto. The Master Servicer shall not permit defeasance (or partial defeasance
if permitted under the Mortgage Loan) of any Mortgage Loan on or before the
second anniversary of the Closing Date unless such defeasance will not result in
an Adverse REMIC Event and the Master Servicer has received an opinion of
counsel to such effect and all items in the following sentence have been
satisfied. Subsequent to the second anniversary of the Closing Date, the Master
Servicer, in connection with the defeasance of a Mortgage Loan shall require (to
the extent it is not inconsistent with the Servicing Standard) that: (i) the
defeasance collateral consists of Qualifying Government Securities as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended, that are
acceptable as defeasance collateral under the current guidelines of the Rating
Agencies, (ii) the Master Servicer has determined that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral (subject to customary qualifications) or (B) the
Master Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans, (iv) the Master Servicer has
requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) a Rating Agency Confirmation is received if the
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance, unless such Rating
Agency has waived in writing such Rating Agency Confirmation requirement (or
such higher threshold, if any, as shall be published by the Rating Agencies) or
(B) if the Mortgage Loan is less than or equal to both of the amounts set forth
in clause (A) and the
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successor Mortgagor with respect to the subject Mortgage Loan and its affiliates
collectively have assumed Mortgage Loans comprising an aggregate principal
amount at least equal to the lesser of $20,000,000 and 5% of the Aggregate
Certificate Balance, either a Notice and Certification in the form attached
hereto as Exhibit Z (or such less restrictive forms, if any, as shall be adopted
by the Rating Agencies) 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.
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 default, the Special Servicer will process the defeasance of
such Specially Serviced Mortgage Loan, and the Special Servicer shall be
entitled to any fees paid relating to such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after the
Closing Date, the Seller has notified the related ground lessor of the transfer
of such Mortgage Loan to the Trust pursuant to this Agreement and informed such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer (as evidenced by delivery of a
copy thereof to the Master Servicer). The Master Servicer shall promptly notify
the ground lessor if the Seller has failed to do so by the thirtieth day after
the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of
any B Note has agreed that the Master Servicer and the Special Servicer are
authorized and obligated to service and administer the B Note pursuant to this
Agreement. The Master Servicer shall be entitled, during any period when the A
Note and B Note under any A/B Mortgage Loan do not constitute Specially Serviced
Mortgage Loans, to exercise the rights and powers granted under the related
Intercreditor Agreement to the "Note A Holder" and/or the "Servicer" referred to
therein. For the avoidance of doubt, the parties acknowledge that neither the
Master Servicer nor the Special Servicer shall be entitled or required to
exercise the rights and powers granted to any "Note B Holder" as defined under
the related Intercreditor Agreement.
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(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 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 parties hereto (A) acknowledge that the Master Servicer
has delegated certain of its obligations and assigned certain of its rights
under this Agreement to the Primary
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Servicer pursuant to the Primary Servicing Agreement; and (B) agree: (1) in
addition to those obligations specifically delegated by the Master Servicer to
the Primary Servicer under the Primary Servicing Agreement, the Primary Servicer
shall also perform the Master Servicer's obligations set forth in Section 2.1(d)
of this Agreement as such Section relates to the Mortgage Loans serviced by it;
(2) in addition to those rights specifically granted by the Master Servicer to
the Primary Servicer under the Primary Servicing Agreement, those rights set
forth in Section 8.24 hereof accruing to the benefit of the Master Servicer
shall also accrue to the benefit of the Primary Servicer; (3) any
indemnification or release from liability set forth in this Agreement accruing
to the benefit of the Master Servicer shall also, to the extent applicable,
benefit the Primary Servicer; and (4) for each notice, certification, report,
schedule, statement or other type of writing that a party hereto is obligated to
deliver to the Master Servicer, such party shall deliver to the Primary Servicer
a copy of such notice, certification, report, schedule, statement or other type
of writing at the time and in the same manner that any of the foregoing is
required to be delivered to the Master Servicer. Notwithstanding the provisions
of the Primary Servicing Agreement or any other provisions of this Agreement,
the Master Servicer shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicer, the Certificateholders, the holder of any Serviced
Companion Mortgage Loan and the holder of any B Note for servicing and
administering of the Mortgage Loans and any Serviced Companion Mortgage Loan in
accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans and the
Serviced Companion Mortgage Loans. The Master Servicer or the Primary 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 or the Primary 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 or the Primary Servicer is
terminated in accordance with this Agreement or the Primary Servicing Agreement.
In addition, none of the Trustee, the Paying Agent, the Certificateholders, the
holder of any Serviced Companion Mortgage Loan or the holder of any B Note shall
have any direct obligation or liability (including, without limitation,
indemnification obligations) with respect to any Sub-Servicer. The Master
Servicer or the Primary Servicer shall pay the costs of enforcement against any
of its Sub-Servicers at its own expense, but shall be reimbursed therefor only
(i) from a general recovery resulting from such enforcement only to the extent
that such recovery exceeds all amounts due in respect of the related Mortgage
Loans or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed. Notwithstanding the
provisions of any primary servicing agreement or sub-servicing agreement, any of
the provisions of this Agreement relating to agreements or arrangements between
the Master Servicer or the Primary Servicer or a Sub-Servicer, or reference to
actions taken through a Sub-Servicer or otherwise, the Master Servicer or the
Primary Servicer shall remain obligated and liable to the Trustee, the Paying
Agent, the Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans and the Serviced Companion
Mortgage Loans in accordance with (and subject to the limitations contained
within) the provisions of this Agreement or the Primary Servicing Agreement
without diminution of such obligation or liability by virtue of indemnification
from a Sub-Servicer and to the same extent and under the same terms and
conditions as if the Master Servicer or the Primary Servicer alone were
servicing and administering the Mortgage Loans.
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(b) Subject to the limitations of subsection (a), the Master
Servicer and the Primary Servicer may appoint one or more sub-servicers to
perform all or any portion of its duties hereunder for the benefit of the
Trustee and the Certificateholders, provided, however, that any decision or
recommendation involving the exercise of the Primary Servicer's discretion as a
"lender" under any loan document with respect to a Mortgage Loan shall be
exercised only by the Primary Servicer and may not be delegated to a
sub-servicer, provided, further, that, after the Closing Date, for so long (but
only for so long) as the Trust, and, with respect to any Serviced Companion
Mortgage Loan, the trust in the related Other Securitization, are subject to the
reporting requirements of the Exchange Act, neither the Master Servicer, nor the
Special Servicer nor any Primary Servicer shall enter into a sub-servicing
agreement with any Prohibited Party.
The Master Servicer shall enter into the Primary Servicing
Agreement with the Primary Servicer and shall not terminate such agreements
except in accordance with the terms thereof. To the extent consistent with the
rights of the Primary Servicer under this Agreement and the Primary Servicing
Agreement, but not in limitation of any other rights granted to the Primary
Servicer in this Agreement and/or in the Primary Servicing Agreement, the
Primary Servicer shall have all of the rights and obligations of a Sub-Servicer
set forth herein.
Notwithstanding any other provision set forth in this Agreement
to the contrary, (i) the Primary Servicer's rights and obligations under the
Primary Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
Servicing Agreement has not been terminated in accordance with its provisions;
(ii) any successor Master Servicer, including, without limitation, the Trustee
(if it assumes the servicing obligations of the Master Servicer) shall be deemed
to automatically assume and agree to the then current Primary Servicing
Agreement without further action upon becoming the successor Master Servicer and
(iii) this Agreement may not be modified in any manner which would increase the
obligations or limit the rights of the Primary Servicer hereunder and/or under
the Primary Servicing Agreement, without the prior written consent of the
Primary Servicer (which consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to
the Primary Servicer under the Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the
parties hereto acknowledges and agrees that the Special Servicer is neither a
party to the Primary Servicing Agreement, nor is it bound by any provision of
the Primary Servicing Agreement. The Special Servicer hereby acknowledges the
delegation of rights and duties hereunder by the Master Servicer pursuant to the
provisions of the Primary Servicing Agreement.
(c) Notwithstanding anything herein to the contrary, any
sub-servicing agreement with a Sub-Servicer (excluding the Primary Servicing
Agreement) shall provide that (i) the failure of such Sub-Servicer to comply
with any of the requirements of Article XIII of this Agreement, (ii) the failure
of such Sub-Servicer to comply with any requirements to deliver any
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items required by Items 1122 and 1123 of Regulation AB under any other pooling
and servicing agreement relating to any commercial mortgage loan securitization
similar to the Trust or (iii) the status of such Sub-Servicer as a Prohibited
Party at any time during which the Trust is subject to the reporting
requirements of the Exchange Act shall constitute an event of default by such
Sub-Servicer under such sub-servicing agreement upon the occurrence of which any
of the Master Servicer, the Primary Servicer, the Special Servicer or the
Depositor shall have the right to immediately terminate such Sub-Servicer and
that such termination shall be deemed for cause.
Section 8.5 Servicers May Own Certificates. The Master Servicer
and the Primary Servicer and any agent of the Master Servicer or Primary
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 the Primary
Servicer or such agent in the Certificates shall not be taken into account when
evaluating whether actions of the Master Servicer are consistent with its
obligations in accordance with the Servicing Standard regardless of whether such
actions may have the effect of benefiting the Class or Classes of Certificates
owned by the Master Servicer.
Section 8.6 Maintenance of Hazard Insurance, Other Insurance,
Taxes and Other. Subject to the limitations set forth below, the Master Servicer
shall use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan) (A) a Standard Hazard Insurance Policy (that, if the terms of the
related Mortgage Loan documents and the related Mortgage so require or so permit
the holder of the Mortgage Loan to require, contains no exclusion for damages
due to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance
Act of 2002) and which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding Principal
Balance of such Mortgage Loan and any related B Note or Serviced Companion
Mortgage Loan, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause and (B) any other insurance coverage for
a Mortgage Loan which the related Mortgagor is required to maintain under the
related Mortgage, provided the Master Servicer shall not be required to maintain
earthquake insurance on any Mortgaged Property unless such insurance was
required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at commercially reasonable rates. If the related
Mortgagor does not maintain the insurance set forth in clauses (A) and (B)
above, then the Master Servicer shall cause such insurance to be maintained with
a Qualified Insurer. The Master Servicer shall be deemed to have satisfied its
obligations with respect to clause (A) above if the Mortgagor maintains, or the
Master Servicer shall have otherwise caused to be obtained, a Standard Hazard
Insurance Policy that is in compliance with the related Mortgage Loan documents,
and, if required by such Mortgage Loan documents or if such Mortgage Loan
documents permit the holder of the Mortgage Loan to require, the Mortgagor pays,
or the Master Servicer shall have otherwise caused to be paid, the premium
required by the related insurance provider that is necessary to avoid an
exclusion in such policy against "acts of terrorism" as defined by the Terrorism
Risk Insurance Act of 2002.
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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 Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to cause the Mortgagor to maintain
or itself obtain insurance coverage beyond what is available on commercially
reasonable terms at a cost customarily acceptable (in each case, as determined
by the Master Servicer, which shall be entitled to rely, at its sole expense, on
insurance consultants in making such determination, consistent with the
Servicing Standard) and consistent with the Servicing Standard; provided, that
the Master Servicer shall be obligated to cause the Mortgagor to maintain or
itself obtain insurance against property damage resulting from terrorism or
similar acts if the terms of the related Mortgage Loan documents and the related
Mortgage so require unless the Master Servicer determines that (i) such
insurance is not available at any rate or (ii) such insurance is not available
at commercially reasonable rates and such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located; provided, that such determination must be made by the Master Servicer
not less frequently (but need not be made more frequently) than annually, but in
any event, shall be made on the approximate date on (but not later than sixty
(60) days thereafter) which the Master Servicer receives notice of the renewal,
replacement or cancellation of coverage (as evidenced by the related insurance
policy or insurance certificate). Notwithstanding the limitation set forth in
the preceding sentence, if the related Mortgage Loan documents and the related
Mortgage require the Mortgagor to maintain insurance against property damage
resulting from terrorism or similar acts, the Master Servicer shall prior to
availing itself of any limitation described in that sentence with respect to any
Mortgage Loan (or any component loan of an A/B Mortgage Loan) that has a
principal balance in excess of $2,500,000, obtain the approval or disapproval of
the Special Servicer and the
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Operating Adviser (subject to the penultimate paragraph of Section 9.39). The
Master Servicer shall be entitled to rely on the determination of the Special
Servicer made in connection with such approval or disapproval. The Special
Servicer shall decide whether to withhold or grant such approval in accordance
with the Servicing Standard. If any such approval has not been expressly denied
within seven (7) Business Days of receipt by the Special Servicer and Operating
Adviser from the Master Servicer of the Master Servicer's determination and
analysis and all information reasonably requested by the Special Servicer and
reasonably available to the Master Servicer in order to make an informed
decision, such approval shall be deemed to have been granted. The Master
Servicer shall notify the holder of the related Serviced Companion Mortgage Loan
of any determination that it makes pursuant to clauses (i) and (ii) above with
respect to any Serviced Pari Passu Mortgage Loan.
The Master Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 8.6 either (i) if the
Master Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer or (ii) if the Master
Servicer, provided that its long-term rating is not less than "A" by Fitch and
"A2" by Xxxxx'x, self-insures for its obligations as set forth in the first
paragraph of this Section 8.6. In the event that 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
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
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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 that
such assignment be approved, 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) 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 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
five (5) 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 (i) it has received the written consent of the
Special Servicer or such consent has been deemed to have been granted as set
forth 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. The Special
Servicer hereby acknowledges the delegation of rights and duties hereunder by
the Master Servicer pursuant to the provisions of the Primary Servicing
Agreement. If the
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Special Servicer withholds consent pursuant to the provisions of this Agreement,
it shall provide the Master Servicer or the Primary 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 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, the Paying Agent 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.
Notwithstanding the foregoing, the Special Servicer acknowledges
that the Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicer with respect to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests and grants the Primary Servicer certain authority to evaluate and
process such requests in accordance with this Agreement, the Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition,
term or provision that requires, or specifies a standard of, consent or approval
of the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement provides for the determination of materiality of such
condition, term or provision requiring approval or consent by the Master
Servicer or the Primary Servicer and the referral of such condition, term or
provision to a Special Servicer for consent in accordance with the terms of the
Primary Servicing Agreement upon a determination of materiality. The Special
Servicer acknowledges such provisions. Nothing in this Agreement, however, shall
grant the Primary Servicer greater authority, discretion or delegated rights
over Post Closing Requests than are set forth in the Primary Servicing
Agreement.
Neither the Master Servicer nor the Special Servicer shall have
any liability, and each of them shall be indemnified by the Trust for any
liability to the Mortgagor or the proposed assignee, for any delay in responding
to requests for assumption, if the same shall occur as a
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result of the failure of the Rating Agencies, 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 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 the
Rating Agencies 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, the Paying Agent 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).
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 related 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.
(c) The Master Servicer shall have the right to consent to any
transfers of an interest of a Mortgagor, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, including any consent to transfer to any subsidiary or affiliate
of Mortgagor or to a person acquiring less than a majority interest in the
Mortgagor; provided, however, that if (i) the Principal Balance of such Mortgage
Loan (together
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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,
and (ii) the transfer is of an interest in the Mortgagor greater than 49%, then
prior to consenting, the Master Servicer shall obtain a Rating Agency
Confirmation regarding such consent, the costs of which to be payable by the
related Mortgagor to the extent provided for in the Mortgage Loan documents. The
Master Servicer shall be entitled to collect and receive from Mortgagors any
customary fees in connection with such transfers of interest as additional
servicing compensation.
(d) 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 (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.
(e) 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
(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 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
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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) 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 five (5) 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 set forth 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.
Notwithstanding anything to the contrary contained in this
Section 8.7 that requires the consent of the Master Servicer or the Special
Servicer, as applicable, any such consent with respect to any A/B Mortgage Loan
or any Loan Pair shall be obtained in accordance with the related Intercreditor
Agreement or the related Loan Pair Intercreditor Agreement and within the time
periods specified therein.
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 (or Custodian on its behalf) 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
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written evidence of cancellation thereon and, if the related Mortgage has been
recorded in the name of MERS or its designee, the Master Servicer shall take all
necessary action to reflect the release of such Mortgage on the records of MERS.
The provisions of the immediately preceding sentence shall not, in any manner,
limit or impair the right of the Master Servicer to execute and deliver, on
behalf of the Trustee, the Certificateholders, the holder of any Serviced
Companion Mortgage Loan, the holder of any B Note or any of them, any and all
instruments of satisfaction, cancellation or assignment without recourse,
representation or warranty, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans, any Serviced
Companion Mortgage Loan or any B Note, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders, the holder of any
Serviced Companion Mortgage Loan and the holder of any B Note. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Distribution Account but shall be paid
by the Master Servicer except to the extent that such expenses are paid by the
related 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.
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Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit of the Certificateholders.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, and the Paying Agent, to the extent required by
this Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
the Master Servicer in respect of any Mortgage Loans (or any B Note or Serviced
Companion Mortgage Loan), whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, including any funds
on deposit in the Certificate Account (or any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account), shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders (or the
holder of any B Note or Serviced Companion Mortgage Loan, as applicable) and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement. The Master Servicer agrees that it
shall not create, incur or subject any Servicer Mortgage Files or Trustee
Mortgage File or any funds that are deposited in the Certificate Account or any
Escrow Account, or any funds that otherwise are or may become due or payable to
the Trustee or the Paying Agent, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Servicer Mortgage
Files or Trustee Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that the Master Servicer shall be entitled to
receive from any such funds any amounts that are properly due and payable to the
Master Servicer under this Agreement.
Section 8.10 Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee, which shall be payable
by the Trust from amounts held in the Certificate Account (and from the related
A/B Loan Custodial Account to the extent related solely to a B Note and from the
related Serviced Companion Mortgage Loan Custodial Account to the extent related
solely to a Serviced Companion Mortgage Loan) or otherwise collected from the
Mortgage Loans as provided in Section 5.2. The Master Servicer shall be required
to pay to the Primary Servicer its Primary Servicing Fees, which shall be
payable by the Trust from amounts as provided in Section 5.1(c), unless retained
by the Primary Servicer from amounts transferred to the Master Servicer in
accordance with the terms of the Primary Servicing Agreement. 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 or Primary Servicer, as applicable, for any reason, it will continue to
have the right to receive its portion of the Excess Servicing Fee, and any of
the holders of the right to receive Excess Servicing Fees shall have the right
to assign its portion of the Excess Servicing Fee, whether or not it is then
acting as Master Servicer or Primary Servicer hereunder. The Master Servicer
shall also be entitled to the Primary Servicing Fee, which shall be payable by
the Trust from amounts held in the Certificate Account (or a sub-account
thereof) or otherwise collected from the Mortgage Loans as provided in Section
5.2, provided that the Primary Servicing Fee payable to the Master Servicer
shall only be
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collected from the Mortgage Loans set forth on Schedule III, except as provided
in Section 8.28(b).
(b) Additional servicing compensation in the form of assumption
fees, extension fees, servicing fees, default interest (excluding default
interest allocable to any B Note if the holder of the B Note has cured the
related default pursuant to the terms of the related Intercreditor Agreement)
payable at a rate above the Mortgage Rate (net of any amount used to pay Advance
Interest), 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 Section 8.7(a), (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 as provided in Section 8.18; 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. 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) The Master Servicer shall also be entitled to additional
servicing compensation of (i) an amount equal to the excess, if any, of the
aggregate Prepayment Interest Excess relating to Mortgage Loans which are not
Specially Serviced Mortgage Loans for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution
Date, (ii) interest or other income earned on deposits in the Certificate
Account and the Distribution Account (but only to the extent of the net
investment earnings, if any, with respect to each such account), and, (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Escrow Accounts.
Section 8.11 Master Servicer Reports; Account Statements.
(a) For each Distribution Date, (i) the Master Servicer shall
deliver to the Paying Agent, (or with respect to a Serviced Companion Mortgage
Loan, to the holder thereof or its servicer), no later than 1:00 p.m., New York
City time, on the related Report Date, the Master Servicer Remittance Report
with respect to such Distribution Date including any information regarding
prepayments made pursuant to Section 5.2(b) and (ii) the Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of the
P&I Advance, if any, to be made by the Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for the Master Servicer to satisfy its duties in this Section 8.11. The Master
Servicer Remittance Report shall be updated no later than 2:00 p.m. on the
second Business Day prior to the Distribution Date to reflect any payment on a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note for which the
Scheduled Payment is paid on a Due Date (or within its grace period) that occurs
after the end of the related Collection Period and the Master Servicer
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shall notify the Paying Agent on the Report Date that such an updated Master
Servicer Remittance Report is to be provided.
(b) The Master Servicer shall deliver to the Trustee, the Paying
Agent and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account, and shall deliver to each holder of a B Note and Serviced Companion
Mortgage Loan within 30 days following each Distribution Date a statement
setting forth the status of the related A/B Loan Custodial Account and Serviced
Companion Mortgage Loan Custodial Account, as of the close of business on such
Distribution Date showing, for the period covered by such statement, the
aggregate of transfers in and transfers from or deposits in or withdrawals from
such A/B Loan Custodial Account or Serviced Companion Mortgage Loan Custodial
Account, as applicable.
(c) The Master Servicer shall promptly inform the Special
Servicer of the name, account number, location and other necessary information
concerning the Certificate Account in order to permit the Special Servicer to
make deposits therein.
(d) Reserved
(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the
contrary, the Master Servicer shall not have any obligation (other than to the
Special Servicer and, to the extent provided in the last sentence of Section
8.14, the Operating Adviser) to deliver any statement, notice or report that is
then made available on the Master Servicer's or the Paying Agent's internet
website, provided that it has notified all parties entitled to delivery of such
reports, by electronic mail or other notice provided in this Agreement, to the
effect that such statements, notices or reports shall thereafter be made
available on such website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to
the Paying Agent, and the holder of any Serviced Companion Mortgage Loan (in
respect of such Serviced Companion Mortgage Loan) the following CMSA Reports
with respect to the Mortgage Loans (and, if applicable, the related REO
Properties and, to the extent received from the applicable Non-Serviced Mortgage
Loan Master Servicer, any Non-Serviced Mortgage Loan) providing the required
information as of the related Determination Date upon the following schedule:
(i) a CMSA Comparative Financial Status Report and the CMSA Financial File (it
being understood that the Primary Servicer is required to deliver the CMSA
Financial File only quarterly) not later than each Report Date, commencing in
December 2006; (ii) a CMSA Operating Statement Analysis Report and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
CMSA Watch List in accordance with and subject to the terms of Section
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8.11(h) on each Report Date, commencing in December 2006; (iv) a Loan Set-Up
File (with respect to the initial Distribution Date only) not later than the
Report Date in December 2006; (v) a Loan Periodic Update File not later than
each Report Date commencing in November 2006 (which Loan Periodic Update File
shall be accompanied by a CMSA Advance Recovery Report); (vi) a Property File
not later than each Report Date, commencing in December 2006; (vii) a Delinquent
Loan Status Report on each Report Date, commencing in December 2006; (viii) an
Historical Loan Modification Report not later than each Report Date, commencing
in December 2006, (ix) an Historical Liquidation Report not later than each
Report Date, commencing in December 2006; and (x) an REO Status Report on each
Report Date, commencing in December 2006. The information that pertains to
Specially Serviced Mortgage Loans and REO Properties reflected in such reports
shall be based solely upon the reports delivered by the Special Servicer to the
Master Servicer in writing and on a computer readable medium reasonably
acceptable to the Master Servicer and the Special Servicer one (1) Business Day
after the Determination Date prior to the related Master Servicer Remittance
Date in the form required under Section 9.32. The Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Mortgage Loans
and Specially Serviced Mortgage Loans shall be subject to the satisfaction of
the Special Servicer's obligations under Section 9.32. The reporting obligations
of the Master Servicer in connection with any A/B Mortgage Loan shall be
construed to refer only to such information regarding the A/B Mortgage Loan (and
its related Mortgaged Property) and by reference to the related A Note only, but
whenever the Master Servicer remits funds to the holder of the related B Note,
it shall thereupon deliver to such holder a remittance report identifying the
amounts in such remittance.
(h) For each Distribution Date, the Master Servicer shall deliver
to the Paying Agent (and solely with respect to any A/B Mortgage Loan, the
holder of the related B Note and solely with respect to any Loan Pair, the
holder of the related Serviced Companion Mortgage Loan), not later than the
related Report Date, a CMSA Watch List. The Master Servicer shall list any
Mortgage Loan on the CMSA Watch List as to which any of the events specified in
the CMSA Watch List published by the CMSA for industry use has occurred.
(i) If the Master Servicer 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 and the Paying Agent, which notice shall set
forth (i) the unpaid Principal Balance of such Mortgage Loan or B Note
immediately before and immediately after the drawing, and (ii) a brief
description of the circumstances that in the Master Servicer's good faith and
reasonable judgment entitled the Master Servicer to make such drawing.
(j) The Master Servicer, the Special Servicer, the Trustee and
the Paying Agent, as applicable, but not the Primary Servicer, shall prepare and
deliver (or make available on their respective websites) to the Operating
Adviser the reports and information described in Exhibit BB (to the extent not
otherwise delivered pursuant to this Agreement) in the form and format and
within the time frame set forth therein.
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(k) If the Operating Adviser and the Special Servicer are
Affiliates of one another, a report delivered to one of them by the Master
Servicer need not also be delivered to the other of them.
Section 8.12 Reserved.
Section 8.13 Reserved.
Section 8.14 CMSA Operating Statement Analysis Reports Regarding
the Mortgaged Properties. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year), commencing in the quarter ending
on March 31, 2007, in each case for the trailing or quarterly information
received, the Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall deliver or make available
electronically to the Paying Agent and the Operating Adviser a CMSA Operating
Statement Analysis Report and a CMSA Financial File for each Mortgaged Property
(in electronic format), prepared using the normalized quarterly and normalized
year-end operating statements and rent rolls of each applicable Mortgagor (to
the extent provided to the Master Servicer by or on behalf of each Mortgagor,
or, in the case of Specially Serviced Mortgage Loans, as provided to the Special
Servicer, which the Special Servicer shall forward to the Master Servicer
promptly upon receipt thereof); provided, however, that the Master Servicer
shall use reasonable efforts to collect from the related Mortgagors any such
operating statements and rent rolls that relate to the calendar quarter ending
September 30, 2006 or subsequent calendar quarters; and provided further that,
until such time as CMSA shall adopt a standard that requires normalized
quarterly operating statements and rent rolls, the Master Servicer and the
Primary Servicer shall be permitted to provide non-normalized quarterly
operating statements and rent rolls. Not later than the Report Date occurring in
June of each year beginning in 2007 for year-end 2006, the Master Servicer (in
the case of Mortgage Loans that are not Specially Serviced Mortgage Loans) or
the Special Servicer (in the case of Specially Serviced Mortgage Loans) shall
deliver or make available electronically to the Paying Agent and the Operating
Adviser a CMSA Operating Statement Analysis Report, a CMSA Financial File and an
NOI Adjustment Worksheet for each Mortgage Loan (in electronic format), based on
the most recently available year-end operating statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to the
Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgage Loans, as provided to the Special Servicer, which the Special
Servicer shall forward to the Master Servicer on or before May 31 of each such
year), containing such information and analyses for each Mortgage Loan provided
for in the respective forms of CMSA Operating Statement Analysis Report, CMSA
Financial File and an NOI Adjustment Worksheet as would customarily be included
in accordance with the Servicing Standard including, without limitation, Debt
Service Coverage Ratios and income, subject, in the case of any Non-Serviced
Mortgage Loan, to the receipt of such report from the applicable Non-Serviced
Mortgage Loan Master Servicer or the applicable Non-Serviced Mortgage Loan
Special Servicer. The Master Servicer shall make reasonable efforts, consistent
with the Servicing Standard, to obtain such reports from the applicable
Non-Serviced Mortgage Loan Master Servicer or the applicable Non-Serviced
Mortgage Loan Special Servicer. In addition, the Master Servicer shall deliver
to the Operating Adviser, and upon request the Master Servicer shall make
available to the Rating Agencies, the Special Servicer, the Paying Agent, the
Trustee and the holder of any Serviced Companion Mortgage Loan, within 30 days
following receipt thereof by the Master Servicer, copies of any
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annual, monthly or quarterly financial statements and rent rolls collected with
respect to the Mortgaged Properties. As and to the extent reasonably requested
by the Special Servicer, the Master Servicer shall make inquiry of any Mortgagor
with respect to such information or as regards the performance of the related
Mortgaged Property in general. The Paying Agent shall provide or make available
electronically at no cost to the Certificateholders or Certificate Owners, the
Rating Agencies, the Trustee, the Special Servicer, the Operating Adviser, the
Depositor and its designees, the Placement Agents, the Underwriters, and any
prospective investors or Certificate Owners who provide the Paying Agent with an
investor certification satisfactory to the Paying Agent, and solely as it
relates to any A/B Mortgage Loan, to the holder of the related B Note and solely
as it relates to any Loan Pair, to the holder of the related Serviced Companion
Mortgage Loan, the CMSA Operating Statement Analysis Reports, CMSA Financial
Files and NOI Adjustment Worksheets described above pursuant to Section 5.4(a).
The Master Servicer (but not the Primary Servicer under the Primary Servicing
Agreement) shall electronically deliver the CMSA Operating Statement Analysis
Report, the operating statements, rent rolls, property inspections and NOI
Adjustment Worksheet for each Mortgage Loan to the Operating Adviser using the
ARCap Naming Convention.
Section 8.15 Other Available Information and Certain Rights of
the Master Servicer.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying
Agent shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, the Primary Servicer, any
Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the
Depositor (and the holder of a B Note, if it relates to a B Note and the holder
of a Serviced Companion Mortgage Loan, if it relates to a Serviced Companion
Mortgage Loan), originals or copies of, among other things, the following items:
(i) this Agreement and any amendments thereto, (ii) all final and released CMSA
Operating Statement Analysis Reports and the Master Servicer Remittance Reports,
(iii) all Officer's Certificates (including Officer's Certificates evidencing
any determination of Nonrecoverable Advances) delivered to the Trustee and the
Paying Agent since the Closing Date, (iv) all accountants' reports delivered to
the Trustee and the Paying Agent since the Closing Date, (v) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer and/or the Special Servicer and (vi) any and all
Officers' Certificates (and attachments thereto) delivered to the Trustee and
the Paying Agent to support the Master Servicer's determination that any Advance
was not or, if made, would not be, recoverable. The Trustee and the Paying Agent
will be permitted to require payment of a sum to be paid by the requesting party
(other than the Rating Agencies, the Trustee, the Paying Agent, any Placement
Agent or any Underwriter) sufficient to cover the reasonable costs and expenses
of making such information available.
(b) Subject to the restrictions described below, the Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the Special Servicer, the Primary 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
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this Agreement (which access may occur by means of the availability of
information on the Master Servicer's or the Paying Agent's internet website),
and access to Servicing Officers of the Master Servicer responsible for its
obligations hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the Master Servicer upon request; provided, however, that the
Master Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, the Paying Agent, the Special Servicer,
the Operating Adviser, any Placement Agent, any Underwriter, or any Rating
Agency) of a sum sufficient to cover the reasonable expenses actually incurred
by the Master Servicer of providing access or copies (including electronic or
digital copies) of any such information requested in accordance with the
preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer
to confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report. Notwithstanding the above, the
Master Servicer shall not have any liability to the Depositor, the Trustee, the
Paying Agent, the Special Servicer, any Non-Serviced Mortgage Loan Master
Servicer, any Non-Serviced Mortgage Loan Special Servicer, any
Certificateholder, any Certificate Owner, any holder of a Serviced Companion
Mortgage Loan, any holder of a B Note, any Placement Agent, any Underwriter, any
Rating Agency or any other Person to whom it delivers information pursuant to
this Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any account
(including (x) with respect to any such claims relating to a Serviced Companion
Mortgage Loan, from amounts held in the related Serviced Companion Mortgage Loan
Custodial Account and (y) with respect to any such claims relating to a B Note,
from amounts held in the related A/B Loan Custodial Account) or otherwise) shall
hold harmless and indemnify the Master Servicer from any loss or expense
(including attorney fees) relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required of it
under this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Paying Agent, the Special Servicer, the Primary 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 Paying Agent, the Master
Servicer, the Special Servicer, the Rating Agencies, the Operating
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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 Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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.
Section 8.16 Rule 144A Information. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent or
the Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof,
any Certificate Owner therein and to any prospective purchaser of the
Certificates or beneficial interest therein reasonably designated by the Paying
Agent or the Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Sections 5.4 and 8.15, any information prepared by the Master Servicer that is
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act, including,
without limitation, copies of the reports and information described in Sections
8.15(a) and (b).
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of the Certificates by such Person and the
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the Master Servicer chooses to deliver the information directly,
the Depositor, the Placement Agents, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the Master Servicer
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may contemporaneously provide such information to the Depositor, the Trustee,
the Paying Agent, the Luxembourg Paying Agent, the Placement Agents, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, the Placement Agents or the Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
Section 8.17 Inspections. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and
Non-Serviced Mortgage Loans, every calendar year beginning in 2007, or every
second calendar year beginning in 2008 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000 (it being understood that
such Mortgaged Properies securing a Mortgage Loan or Loan Pair with a Principal
Balance of less than $2,000,000 will be inspected in the 2008 calendar year and
every second calendar year thereafter); provided that the Master Servicer shall,
at the expense of the Trust, inspect or cause to be inspected each Mortgaged
Property related to a Mortgage Loan that has a Debt Service Coverage Ratio that
falls below 1.0x and provided further, that with respect to any Mortgage Loan or
Loan Pair that has a Principal Balance of less than $2,000,000 and has been
placed on the CMSA Watch List, the Master Servicer shall, at the expense of the
Trust and at the request of the Controlling Class, inspect or cause to be
inspected the related Mortgaged Property every calendar year beginning in 2007
so long as such Mortgage Loan or Loan Pair continues to be on the CMSA Watch
List; provided, if such Mortgage Loan or Loan Pair is no longer on the CMSA
Watch List at the time the inspection was scheduled, no such inspection shall be
required. The Master Servicer shall prepare an Inspection Report relating to
each inspection. The Master Servicer shall promptly forward the applicable
Inspection Report to the Rating Agencies, the Placement Agents, the
Underwriters, the Depositor, the Trustee, the Paying Agent, the Operating
Adviser, the Special Servicer, solely as it relates to any Loan Pair, to the
holder of the related Serviced Companion Mortgage Loan, and solely as it relates
to any A/B Mortgage Loan, to the holder of the related B Note, and upon request,
to any Certificateholder, any Certificate Owner, any Seller and the Primary
Servicer. The Special Servicer shall have the right to inspect or cause to be
inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer notifies the Master Servicer prior to such
inspection.
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 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
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terms of the related Mortgage Loan do not require the Master Servicer to approve
such release, then the Special Servicer shall within five 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 approval of 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) 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 not be unreasonably withheld, consistent with the
Servicing Standard, (B) failure of the Special Servicer to notify the Master
Servicer, within five 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 consent of the Special
Servicer or such consent has been deemed to have been granted as set forth
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.
Notwithstanding the foregoing, the Special Servicer acknowledges
that the Master Servicer has delegated certain tasks, rights and obligations to
the Primary Servicer with respects to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests and grants the Primary Servicer certain authority to evaluate and
process such requests in accordance with this Agreement, the Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition,
term or provision that requires, or specifies a standard of, consent or approval
of the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement provides for determination of materiality of such condition,
term or provision requiring approval or consent by the Master Servicer or the
Primary Servicer and the referral of such condition, term or provision to the
Special Servicer for consent in accordance with the terms of the Primary
Servicing Agreement upon a determination of materiality. The Special Servicer
acknowledges such provisions.
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Nothing in this Agreement, however, shall grant the Primary Servicer greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 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 of the related Mortgaged Property. The Master Servicer shall
process all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with respect
to any such extension.
(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,
amendment or collateral release, 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. 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 (and any amounts incurred by the Special Servicer 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.
(c) The Master Servicer shall notify the Trustee, the Paying
Agent, the Operating Adviser and the Special Servicer of any modification,
waiver or amendment of any term of any Mortgage Loan permitted by it under this
Section and the date thereof, and shall deliver to the Trustee for deposit in
the related Mortgage File, an original counterpart of the agreement relating to
such modification, waiver or amendment, promptly following the execution thereof
except to the extent such documents have been submitted to the applicable
recording office, in which event the Master Servicer shall promptly deliver
copies of such
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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) Neither the Master Servicer nor the Primary Servicer will 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 and the Primary 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 Paying Agent,
the Trustee and solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note and solely as it relates to any Loan Pair, to the holder of
the related Serviced Companion Mortgage Loan, within two Business Days after
becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan,
which notice shall identify the related Mortgage Loan and set forth in
reasonable detail the nature and relevant facts of such Servicing Transfer Event
and whether such Mortgage Loan is covered by an Environmental Insurance Policy
(and for purposes of stating whether such Mortgage Loan is covered by an
Environmental Insurance Policy the Master Servicer may rely on Schedule X
attached hereto) and, except for the Rating Agencies, the Paying Agent and the
Trustee, shall be accompanied by a copy of the Servicer Mortgage File. The
Special Servicer shall not be liable for its failure to deliver the notice set
forth in Section 9.36(a) if such failure is caused by its failure to receive the
written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify
the related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
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(c) Any calculations or reports prepared by the Master Servicer
to the extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer
shall provide to the Special Servicer, in order for the Special Servicer to
comply with its obligations under this Agreement, such information (and in the
form and medium) as the Special Servicer may reasonably request in writing from
time to time, provided that (i) the Master Servicer shall not be required to
produce any ad hoc reports or incur any unusual expense or effort in connection
therewith and (ii) if the Master Servicer elects to provide such ad hoc reports,
it may require the Special Servicer to pay a reasonable fee to cover the costs
of the preparation thereof.
Section 8.20 Representations, Warranties and Covenants of the
Master Servicer.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing
and in good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the laws
of each State in which any Mortgaged Property is located to the extent necessary
to perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Master Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Paying Agent and the Special Servicer,
evidences the valid and binding obligation of the Master Servicer enforceable
against the Master Servicer in accordance with its terms subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body
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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, the Primary Servicer and the Special Servicer of the
occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
Section 8.21 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, consolidation or other change in form to which the Master
Servicer shall be a party (but not the surviving entity), or any Person
succeeding to the business of the Master Servicer, shall be the successor of the
Master Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that each of the
Rating Agencies provides a Rating Agency Confirmation (including with respect to
any securities rated by a Rating Agency evidencing direct beneficial ownership
interests in any Serviced Companion Mortgage Loan or B Note). If a transaction
described in the preceding sentence occurs and (i) the conditions to the
provisions in such sentence are not met, the Trustee may terminate, or (ii) the
conditions set forth in the following paragraph are not met, the Trustee shall
terminate, the successor's, survivor's or resulting entity's servicing of the
Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Sections 8.28 and 8.29.
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Notwithstanding the foregoing, as long as (but only for so long
as) the Trust, and, with respect to any Serviced Companion Mortgage Loan, the
trust in the related Other Securitization, are subject to the reporting
requirements of the Exchange Act, Master Servicer may not remain the Master
Servicer under this Agreement after (x) being merged or consolidated with or
into any Prohibited Party, or (y) transferring all or substantially all of its
assets to any Prohibited Party, unless (i) the Master Servicer is the surviving
entity of such merger, consolidation or transfer or (ii) the Depositor consents
to such merger, consolidation or transfer, which consent shall not be
unreasonably withheld (and if, within 45 days following the date of delivery of
a notice by the Master Servicer to the Depositor of any merger or similar
transaction described in the preceding paragraph, the Depositor shall have
failed to notify the Master Servicer of the Depositor's determination to grant
or withhold such consent, such failure shall be deemed to constitute a grant of
such consent).
Section 8.22 Resignation of Master Servicer.
(a) Except as otherwise provided in Section 8.22(b) hereof, the
Master Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Master Servicer's duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by the Master Servicer to the Trustee. The Master Servicer bears all
costs associated with its resignation and the transfer of servicing under this
Section 8.22(a). Notwithstanding the foregoing, if the Master Servicer shall
cease to serve as such in accordance with this Section 8.22(a) and a successor
servicer shall not have been engaged, the Trustee or an agent of the Trustee
shall assume the duties and obligations of the Master Servicer under this
Agreement. If the Trustee or an agent of the Trustee assumes the duties and
obligations of the Master Servicer pursuant to this Section 8.22(a), the Trustee
or such agent shall be permitted to resign as master servicer if it has been
replaced by a successor servicer satisfying the criteria in the fourth preceding
sentence above.
(b) The Master Servicer may resign from the obligations and
duties imposed on it, upon 30 days notice to the Trustee and the Paying Agent,
provided that (i) a successor servicer (w) is available, (x) has a net worth of
at least $15,000,000, (y) is willing to assume the obligations,
responsibilities, and covenants to be performed hereunder by the Master Servicer
on substantially the same terms and conditions, and for not more than equivalent
compensation to that herein provided and (z) assumes all obligations under the
Primary Servicing Agreement; (ii) the Master Servicer bears all costs associated
with its resignation and the transfer of servicing; and (iii) Rating Agency
Confirmation is obtained with respect to such servicing transfer, as evidenced
by a letter delivered to the Trustee by each Rating Agency.
Section 8.23 Assignment or Delegation of Duties by Master
Servicer. The Master Servicer shall have the right without the prior written
consent of the Trustee to
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(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 Primary Servicer, the
holder of the B Note (only if such assignment/delegation relates to the related
A/B Mortgage Loan), the holder of the Serviced Companion Mortgage Loan (only if
such assignment/delegation relates to the related Loan Pair) and the Trustee
notice of such assignment and delegation; (ii) such purchaser or transferee
accepting such assignment and delegation executes and delivers to the Depositor
and the Trustee an agreement accepting such assignment, which contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreement; (iii) the purchaser or transferee has a net worth in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; and (v) the Depositor consents to such assignment and
delegation, such consent not to 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 Primary Servicer and Sub-Servicers in accordance with Section 8.4 hereof.
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
Paying Agent, the Placement Agents, the Underwriters, the holder of any Serviced
Companion Mortgage Loan, the holder of any B Note or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the Master Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any 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
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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 personally 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
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master 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 Paying Agent or 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.
(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.
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(e) The Master Servicer and any director, officer, employee or
agent of the Master Servicer shall be indemnified by the Trustee, the Paying
Agent and the Special Servicer, as the case may be, and held harmless against
any loss, liability or expense including reasonable attorneys' fees incurred in
connection with any legal action relating to the Trustee's, the Paying Agent'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, the Paying Agent and the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling the
Master Servicer to indemnification hereunder, whereupon the Trustee, the Paying
Agent, or the Special Servicer, in each case, to the extent the claim is related
to its respective willful misfeasance, bad faith or negligence, may assume the
defense of any such claim (with counsel reasonably satisfactory to 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, the Paying Agent 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, the Paying Agent's or the Special Servicer's
defense of such claim is materially prejudiced thereby. Such indemnity shall
survive the termination of this Agreement or the resignation or removal of the
Master Servicer hereunder. Any payment hereunder made by the Trustee, the Paying
Agent or the Special Servicer pursuant to this paragraph to the Master Servicer
shall be paid from the Trustee's, the Paying Agent's or Special Servicer's own
funds, without reimbursement from the Trust therefor except to the extent
achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee, the Paying Agent or
the Special Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee,
the Paying Agent 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
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Losses that relate primarily to the administration of the Trust, to any REMIC
Pool or to any determination respecting the amount, payment or avoidance of any
tax under the REMIC provisions of the Code or the actual payment of any REMIC
tax or expense) shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole but not out of collections on, or other proceeds of,
any Serviced Companion Mortgage Loan or any B Note. In the case of any such
Master Servicer Losses that do not relate primarily to the administration of the
Trust, to any REMIC Pool or to any determination respecting the amount, payment
or avoidance of any tax under the REMIC provisions of the Code or the actual
payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then
such indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable
Intercreditor Agreement and (y) if the collections and proceeds described in
subclause (x) of this clause (1) are not sufficient to so indemnify the Master
Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage
Loan, then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate
collections and proceeds described in subclauses (x) and (y) of this clause (2)
are not sufficient to so indemnify the Master Servicer Indemnified Parties on a
current basis, then the balance of such indemnification shall be paid out of
collections on, and other proceeds of, the Mortgage Loans as a whole.
The 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,
the Paying Agent 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 set forth 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 and the Paying Agent 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, the Paying Agent, and any director,
officer, employee, agent or Controlling Person thereof, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent
and the Trust
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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, the Paying Agent 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, the Paying Agent 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, the Paying Agent or the
Depositor, as applicable) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Master Servicer shall not affect any rights the
Trustee, the Special Servicer, the Depositor, the Paying Agent 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,
the Paying Agent 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) The Primary Servicer and any director, officer, employee or
agent thereof shall be indemnified by the Trust and held harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, the Primary
Servicing Agreement (but only if, and to the extent that, the Master Servicer
would have been entitled to indemnification therefor under this Agreement if it
were directly servicing the Mortgage Loan), any Mortgage Loans, any REO Property
or the Certificates or any exercise of any right under this Agreement or the
Primary Servicing Agreement (limited as set forth above) reasonably requiring
the use of counsel or the incurring of expenses other than any loss, liability
or expense incurred by reason of the Primary Servicer's willful misfeasance, bad
faith or negligence in the performance of duties thereunder. The Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the Primary Servicing Agreement. The
Trustee, the Paying Agent or the Master Servicer shall promptly make from the
Certificate Account any payments certified by the Primary Servicer to the
Trustee and the Paying Agent as required to be made to the Primary Servicer
pursuant to this Section 8.25.
(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
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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.
(e) The Primary Servicer agrees to indemnify the Trustee, the
Special Servicer, the Trust, the Depositor, the Paying Agent, and any director,
officer, employee, agent or Controlling Person thereof, and hold them harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent
and the Trust may sustain arising from or as a result of the willful
misfeasance, bad faith or negligence in the performance of any of the Primary
Servicer's duties under this Agreement, the Primary Servicing Agreement or by
reason of negligent disregard of the Primary Servicer's obligations and duties
thereunder (including a breach of such obligations a substantial motive of which
is to obtain an economic advantage from being released from such obligations),
and if in any such situation the Primary Servicer is replaced, the parties
hereto agree that the amount of such claims, losses, penalties, fines, legal
fees and related costs, judgments, and other costs, liabilities, fees and
expenses shall at least equal the incremental costs, if any, of retaining a
successor primary servicer. The Trustee, the Special Servicer, the Paying Agent
or the Depositor, as applicable, shall immediately notify the Primary Servicer
if a claim is made by any Person with respect to this Agreement, the Primary
Servicing Agreement or the Mortgage Loans entitling the Trustee, the Depositor,
the Special Servicer, the Paying Agent or the Trust to indemnification under
this Section 8.25(d), whereupon the Primary Servicer shall assume the defense of
any such claim (with counsel reasonably satisfactory to the Trustee, the Special
Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Primary Servicer shall not
affect any rights the Trustee, the Special Servicer, the Depositor, the Paying
Agent or the Trust may have to indemnification under this Agreement, the Primary
Servicing Agreement or otherwise, unless the Primary Servicer's defense of such
claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the Primary Servicing
Agreement and the resignation or termination of the Master Servicer, the Special
Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by the Primary 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 Primary Servicer was not
culpable or that the Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
Section 8.26 Reserved.
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions. The Master Servicer shall act in accordance with this Agreement and
the REMIC
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Provisions and related provisions of the Code in order to create or maintain the
status of any REMIC Pool as a REMIC and the Class P Grantor Trust created hereby
as a grantor trust under the Code. The Master Servicer shall not take any action
or (A) cause any REMIC Pool to take any action that could (i) endanger the
status of any REMIC Pool as a REMIC under the Code or (ii) result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) or (B) cause the Class P
Grantor Trust to take any action that could (i) endanger its status as a grantor
trust or (ii) result in the imposition of any tax upon the Class P Grantor Trust
unless the Trustee shall have received a Nondisqualification Opinion (at the
expense of the party seeking to take such action) to the effect 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 Paying Agent as set forth in Section 8.29 and
the obligations of the Master Servicer to the Trustee, the Paying Agent, the
Special Servicer and the Trust) shall terminate (i) on the date which is the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining outstanding (and final distribution to the Certificateholders) or (B)
the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default described in clauses
8.28(a)(iii), (iv), (v), (vi), (x), (xi) or (xii) 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), (vii), (viii) or (ix) 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 (but subject, in the case of Section 8.28(a)(xii), to
the waiver right of the Depositor described therein), 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
Paying Agent 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 which 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 (other
than, for so long as the Trust is subject to the reporting requirements of the
Exchange Act, the duties, covenants or agreements set forth in Article XIII to
the extent described in Section 8.28(a)(xi)) which continues unremedied for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Depositor or the Trustee;
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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) 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
(vi) the Master Servicer has been downgraded to a servicer
rating level below "CMS3" (or its equivalent) by Fitch; or
(vii) 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
(viii) 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
(ix) 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;
(x) 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;
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(xi) subject to Section 13.8, the Master Servicer or any
Additional Servicer or Sub-Servicer appointed by such Master Servicer (other
than any Additional Servicer that is a Seller Sub-Servicer) shall fail to
deliver any Exchange Act reporting items required to be delivered by such
servicer under Article XIII of this Agreement at the times required under such
Article; or
(xii) the Master Servicer shall fail to terminate any
Sub-Servicer that is a Reporting Servicer subject to and in accordance with
Section 8.4(c); provided that the Depositor may waive any such Event of Default
under this clause (xii) in its sole discretion without the consent of the
Trustee or any Certificateholders.
(b) Notwithstanding the foregoing, if the Event of Default of the
Master Servicer occurs primarily by reason of the occurrence of a "Primary
Servicing Default" (as hereinafter defined) (that is, it would not have occurred
but for (a) the occurrence of such Primary Servicing Default and (b) the Master
Servicer failure to cause the cure of such event) and the Trustee (or the
Trustee at the direction of the Certificateholders pursuant to Section 8.28
hereof) elects to terminate the Master Servicer, then Xxxxx Fargo Bank, National
Association shall have the right to elect that the successor Master Servicer,
upon its succession, enter into a primary servicing agreement with Xxxxx Fargo
Bank, National Association with respect to all Mortgage Loans as to which that
Primary Servicing Default occurred, so long as the initial Master Servicer has a
commercial loan master servicer rating of at least "CMS3" (or its equivalent) by
Fitch or a commercial loan primary servicer rating of at least "CPS3" (or its
equivalent) by Fitch, and such agreement shall be substantially in the form of
Exhibit G-1 hereto (but as if Xxxxx Fargo Bank, National Association were the
Primary Servicer or Sub-Servicer thereunder and with applicable servicing fees
and excess fees as specified on the Mortgage Loan Schedule); and, in the case of
an agreement in the form of Exhibit G-1, thereupon Xxxxx Fargo Bank, National
Association shall be deemed to have been granted the rights and deemed to have
assumed the obligations granted to or imposed on the "Primary Servicer"
hereunder as to such Mortgage Loans (and under the Primary Servicing Agreement).
For purposes of the preceding sentence, a "Primary Servicing Default" means an
"event of default" of the Primary Servicer under the Primary Servicing Agreement
of Principal Global Investors, LLC. 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), (v), (vi) or (x) of Section 8.28(a), then the Master Servicer
shall have the right to enter into a primary servicing agreement with the
successor master servicer with respect to all Mortgage Loans that are not then
subject to the Primary Servicing Agreement, so long as the terminated Master
Servicer is on the approved list of commercial mortgage loan servicers
maintained by Fitch.
(c) Reserved [Only Applicable When Not Rated By Xxxxx'x].
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 Paying Agent shall be
made, shall be given promptly in writing by the Master Servicer to the Paying
Agent no later than the later of (i) five Business Days after the final payment
or other liquidation of the last Mortgage Loan or (ii) the sixth day of the
month of such final distribution. Upon any such termination, the duties of the
Master Servicer (other than
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the obligation of the Master Servicer to pay to the Paying Agent 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 Paying Agent 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
Agreement, whether with respect to the Mortgage Loans or otherwise, shall
terminate (except for any rights relating to indemnification, unpaid servicing
compensation or unreimbursed Advances and related interest or, if the terminated
Master Servicer is Xxxxx Fargo Bank, National Association, its rights to the
Excess Servicing Fee); 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 and under the Primary Servicing Agreement, 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)(vii), 8.28(a)(viii) or 8.28(a)(ix), 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 and the Paying Agent 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.
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(c) If (i) the Master Servicer receives a written notice of
termination (A) pursuant to clause (ii) of the first paragraph of Section 8.28
relating solely to an Event of Default set forth in clause (v), (vi), (x) or
(xi) of Section 8.28(a) or (B) pursuant to Section 8.21 and (ii) 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.
(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 and the terms of the Primary
Servicing Agreement, 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).
(g) Notwithstanding anything to the contrary in this Section
8.29, the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreement as a condition
precedent to its becoming Master Servicer hereunder.
(h) 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)(x),
then the Master Servicer shall have the right to enter into a sub-servicing
agreement or primary servicing agreement with the successor
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master servicer with respect to all applicable Mortgage Loans that are not
subject to a sub-servicing agreement or primary servicing agreement, so long as
the Master Servicer is on the S&P Select Servicer List as a U.S. Commercial
Mortgage Servicer and the Operating Adviser has consented to such primary
servicing or sub-servicing arrangement.
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude those servicing rights
and duties as to which Xxxxx Fargo Bank, National Association 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. The
Primary Servicer shall make a Servicing Officer available on any such call to
answer questions from the Operating Adviser regarding the Mortgage Loans and/or
REO Properties that it services.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED
MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the Servicing Standard and the
terms of this Agreement. Certain of the provisions of this Article IX make
explicit reference to their applicability to Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note; notwithstanding such explicit
references, references in this Article IX to "Mortgage Loans" shall be
construed, unless otherwise specified, to refer also to such B Note and such
Serviced Companion Mortgage Loan (but any other terms that are defined in
Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
(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
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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 and the Paying Agent 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 Paying Agent, 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 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
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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 "A2" as rated by Xxxxx'x, 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. 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. The Special Servicer
shall not enter into future sub-servicing contracts unless (a) the Rating
Agencies have confirmed in writing that entering into any such contract will not
result in a qualification, downgrade, or withdrawal of the then current ratings
on the Certificates or (b) the sub-servicing contract relates to a Mortgage
Loan(s) (along with any Mortgage Loans previously sub-serviced in accordance
with this section) that represent less than 25% of the outstanding principal
balance of all Specially Serviced Mortgage Loans.
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
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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 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
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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, 2007); provided further that the Special Servicer shall, at the expense
of the Trust, inspect or cause to be inspected each Mortgaged Property related
to a Mortgage Loan that is delinquent for sixty (60) days in the payment of any
amounts due under such 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 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.
(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 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
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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 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:
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(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 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 the Rating Agencies 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 the Rating Agencies with such memorandum and documentation for all
transfer and assumption consents granted for Mortgage Loans below the threshold
set forth above (and, in the case of encumbrances, the threshold set forth in
Section 9.5(i)), 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 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 the Operating Adviser, 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.
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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 result in a
recovery that would equal or exceed the recovery, from liquidation, on the
Specially Serviced Mortgage Loan to Certificateholders, the holder 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 the related Mortgage Rate or such
other discount rate reasonably assigned by the Special Servicer in accordance
with the Servicing Standard that is no less than the Mortgage Rate (or, in the
case of an A/B Mortgage Loan, such discounting to be performed at a rate no less
than the weighted average of the Mortgage Rate and the stated mortgage rate on
the B Note)), (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 the B Note Trust, and (D) if notice to the Operating Adviser of such
modification, waiver or amendment is required pursuant to Section 9.39, 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.
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, in the case of an ARD Loan,
five 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
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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, 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.
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 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 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 Paying Agent, the Rating
Agencies (and, solely with respect to an A/B Mortgage Loan, the related B Note
Holder) a notice, specifying any assignments and assumptions, modifications,
waivers or amendments executed pursuant to this Section 9.5, 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
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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 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 or an Adverse
Grantor Trust Event with respect to the Grantor Trust Pool, (C) expose the
Trust, the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent 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. In addition, the parties hereto acknowledge that with respect to
any A/B Mortgage Loan, the rights and powers granted to the Operating Advisor
under this Agreement in respect of that Mortgage Loan shall be limited to the
extent set forth in Section 9.37(g).
(i) If any Specially Serviced Mortgage Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
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(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 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) 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.
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(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 such
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 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
Paying Agent, the Operating Adviser 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 and the Paying Agent shall be
entitled to receive from the Special Servicer all such information as the
Trustee and the Paying Agent 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 Paying Agent's or the Operating
Adviser'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).
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(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 Delaware,
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 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, the Paying Agent 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,
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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 or the Paying Agent. The Special Servicer shall
give prompt notice to the Trustee or the Paying Agent, the Depositor, the
Operating Adviser 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 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,
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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. 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 at a cost customarily acceptable 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 "A2" by Xxxxx'x 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
"A2" by Xxxxx'x, 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
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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.
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 Specially Serviced Mortgage
Loan or REO Property. 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
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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.
(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 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
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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:
(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
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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 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),
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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.
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 "LaSalle Bank National Association, as Trustee for the Holders of Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates Series 2006-TOP24, 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.
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(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 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;
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(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
(and, if applicable, the holder of a B Note or a Serviced Companion Mortgage
Loan) pursuant to this subsection (d) for 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 REMIC I by the REO Property would not result in the imposition of a tax upon
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. The
Special Servicer shall notify the Trustee, the Paying Agent 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
Paying Agent with all information for the Paying Agent to file the necessary tax
returns in connection therewith and (iii) upon request from the Paying Agent,
pay from such account to the Paying Agent the amount of the applicable tax. The
Paying Agent 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;
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(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
(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.
(f) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not have any obligations with respect to an REO Property
that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan
and all references to the Special Servicer's obligations in this Agreement with
respect to "REO Property" shall exclude any such Mortgaged Property that secures
a Non-Serviced Mortgage Loan.
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, shall use
its reasonable best efforts 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 Paying Agent
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
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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, 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 (other than
the Special Servicer or an affiliated entity in accordance with the next
succeeding proviso); and provided, further that if the Special Servicer or an
affiliated entity intends to bid on or otherwise purchase 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.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent 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 or the Paying Agent (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.
(d) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not have any obligations with respect to an REO Property
that relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan
and all references to the Special Servicer's obligations in this Agreement with
respect to "REO Property" shall exclude any such Mortgaged Property that secures
a Non-Serviced Mortgage Loan.
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
and Class R-III Certificateholders).
Section 9.17 Reserved.
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Section 9.18 Reserved.
Section 9.19 Reserved.
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); provided, further, that for so long as the Trust, and with
respect to any Serviced Companion Mortgage Loan the trust in such Other
Securitization, is subject to the reporting requirements of the Exchange Act,
the Depositor or the depositor in such Other Securitization, as the case may be,
shall have consented thereto (which consent shall not be unreasonably withheld).
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. Notwithstanding the foregoing, if the Special Servicer
shall cease to serve as such in accordance with this Section 9.21(a) and a
successor servicer shall not have been engaged, the Trustee or an agent of the
Trustee shall assume the duties and obligations of the Special Servicer under
this Agreement. If the Trustee or an agent of the Trustee assumes the duties and
obligations of the Special Servicer pursuant to this Section 9.12(a), the
Trustee or such agent shall be permitted to resign as special servicer if it has
been replaced by a successor servicer satisfying the criteria in the third
preceding sentence above.
(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
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for not more than equivalent compensation as that herein provided, (ii) the
successor Special Servicer has a net worth 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 in which 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, the Primary 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 a net worth in
excess of $15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (v) the Depositor consents to such assignment
and delegation, such consent not to be unreasonably withheld. Notwithstanding
the above, the Special Servicer may appoint Sub-Servicers in accordance with
Section 9.3 hereof.
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
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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 personally 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 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. 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 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:
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(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, the
Trustee and the Paying Agent, 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, the
Trustee's or the Paying Agent'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, the Trustee and the Paying Agent, if a
claim is made by a third party entitling the Special Servicer to indemnification
hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, 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, the Trustee or the Paying Agent shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Master Servicer, the Trustee or the Paying
Agent 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, the
Trustee or the Paying Agent, as the case may be, pursuant to this paragraph to
the Special Servicer shall be paid from the Master Servicer's, the Trustee's or
the Paying Agent's, as the case may be, own funds, without reimbursement from
the Trust therefor, except achieved through subrogation as provided in this
Agreement. Any expenses incurred or indemnification payments made by the
Trustee, the Paying Agent 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
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the Trustee, the Paying Agent 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 shall be indemnified and held harmless by the
Trust, out of the proceeds of the Mortgage Loans and the A/B Mortgage Loan (if
and to the extent that the matter relates to such A/B Mortgage Loan) against any
and all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to (i) this Agreement, and (ii) any
action taken by the Special Servicer in accordance with the instruction
delivered in writing to the Special Servicer by the Trustee or the Master
Servicer pursuant to any provision of this Agreement in each case and the
Special Servicer and each of its directors, officers, employees and agents shall
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer) and the Trust shall
pay, from amounts on deposit in the Certificate Account pursuant to Section 5.2,
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. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer. Any expenses incurred or indemnification payments made by the
Trust shall be reimbursed by the Special Servicer, if a court of competent
jurisdiction makes a final, non-appealable judgment that the Special Servicer
was found to have acted with willful misfeasance, bad faith or negligence.
Notwithstanding the foregoing, if such loss, liability or expense relates
specifically to a particular Serviced Pari Passu Mortgage Loan (or another
Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage
Loan, then such indemnification shall be paid 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 not out of proceeds of any
related B Note. 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 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 until such point as such indemnification is paid
in full or a Final Recovery Determination has been made with respect to such B
Note and only then out of collections on, and other proceeds of, the related A
Note.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Depositor, the Master Servicer, the Paying Agent 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,
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the Depositor, the Paying Agent 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, the Paying Agent 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, the Paying Agent 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, the Paying Agent 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 or the Trustee, the
Depositor, the Paying Agent 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, the Paying Agent 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 "TRANSACTION PARTIES--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
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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 and shall deliver such information with respect thereto as
the Master Servicer or the Paying Agent may request in writing. The Special
Servicer shall provide to the Master Servicer copies of any such reports. The
Master Servicer shall forward such reports to the Trustee and the Paying Agent.
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 and Grantor Trust
Provisions. The Special 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 any REMIC Pool as a REMIC or, as appropriate, adopt a
plan of complete liquidation. The Special Servicer shall not take any action or
(A) 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) 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)) or (B)
cause the Class P Grantor Trust to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon the
Class P Grantor Trust 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
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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.
(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, the Paying Agent 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 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) a Special Servicing Officer of the Special Servicer receives
actual knowledge that Xxxxx'x has (A) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or (B) 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 a Special Servicing Officer
of the Special Servicer obtained such actual knowledge) and, in the case of
either of clauses (A) or (B), citing servicing concerns with the Special
Servicer as the sole or material factor in such rating action; (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
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substantially all of its property; (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 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; (ix) the Special Servicer has been downgraded to a
servicer rating level below "CSS3" (or its equivalent) by Fitch; (x) 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;
(xi) the Special Servicer, or any primary servicer or Sub-Servicer appointed by
the Special Servicer, shall fail to comply with any of its obligations under
Article XIII of this Agreement; or (xii) the Special Servicer shall fail to
terminate, on the same terms and conditions as those set forth in Section 8.4
for a Sub-Servicer of the Master Servicer, any Sub-Servicer appointed by the
Special Servicer. 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, 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 Section 9.30(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) Reserved.
(e) Reserved [Only Applicable When Not Rated By Xxxxx'x].
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
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month in which the final Distribution Date will occur. Upon any such
termination, the rights and 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.
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(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.
Section 9.32 Certain Special Servicer Reports.
(a) The Special Servicer, for each Specially Serviced Mortgage
Loan, shall provide to the Master Servicer and the Paying Agent 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 and the Paying
Agent 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.
(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, the Paying Agent and the Master Servicer
no later than the tenth Business Day following such Final Recovery
Determination.
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(c) The Special Servicer shall provide to the Master Servicer or
the Paying Agent at the reasonable request in writing of the Master Servicer or
the Paying Agent, any information in its possession with respect to the
Specially Serviced Mortgage Loans which the Master Servicer or Paying Agent, as
the case may be, shall require in order for the Master Servicer or the Paying
Agent 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 Master 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 electronically using the ARCap Naming
Convention to the Master Servicer, the Paying Agent, the Rating Agencies and the
Operating Adviser, on or before April 15 of each year, commencing with April 15,
2007, (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, 2007 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 Paying Agent, the Rating Agencies and the
Operating Adviser as soon as possible after receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer,
the Depositor, the Paying Agent and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Trustee, the Paying Agent 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
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
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(g) The Special Servicer shall deliver electronically using the
ARCap Naming Convention a written Inspection Report of each Specially Serviced
Mortgage Loan in accordance with Section 9.4(b) to the Operating Adviser.
(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 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
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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 Controlling Class Representative, 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 Grantor Trust Pool, (C) expose the Trust, the
Depositor, the Master Servicer, the Special Servicer, Certificate Administrator,
the Trustee or any of their respective Affiliates, members, managers, officers,
directors, employees or agents, to any material claim, suit or liability or (D)
materially expand the scope of the Master Servicer's or Special Servicer's
responsibilities under this Agreement.
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Section 9.33 Special Servicer to Cooperate with the Master
Servicer, the Trustee and Paying Agent.
(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, the Paying Agent or the Primary Servicer to enable
it to perform its duties under this Agreement or the Primary Servicing
Agreement, as applicable; 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, the Paying
Agent 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, the expense of which shall not be an expense of the Trust:
(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
(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
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an analysis of whether or not such action is reasonably likely to produce a
greater recovery on a net 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 (other
than Xxxxx Fargo Bank, National Association) 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 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
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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 in the preceding
sentence, 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
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Agreement. 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),
other than an assignee whose purchase of the related Mortgage Loan would violate
the terms of any related intercreditor agreement, 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, provided that such expense is reasonable. 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 are 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 ARCap REIT, Inc. The
Controlling Class shall give written notice to the Trustee, the Paying Agent 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 Paying Agent, not less than 10 days 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 Paying Agent 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 Paying
Agent on or prior to the date of such election. Immediately upon receipt by the
Paying Agent 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
Paying Agent 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 Paying Agent, 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 Paying Agent shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Paying Agent shall be conclusive. Notwithstanding any other provisions of this
Section 9.37, the Paying Agent 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 any A/B Mortgage Loan, to the extent provided
for in the related Intercreditor Agreement, the controlling noteholder with
respect to such A/B Mortgage Loan shall be entitled to exercise the rights and
powers granted to the Operating Adviser herein with respect to such 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 each A/B Mortgage Loan) to
refer to the holder of the related B Note; provided, however, that if the holder
of the related A Note is the controlling noteholder in accordance with the terms
of the related Intercreditor Agreement, then the the controlling noteholder will
be the holder of the related Mortgage Loan (such rights and powers to be
exercisable by the Operating Adviser). 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.
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 for any action taken, or for refraining from the taking of
any action, in good faith and using reasonable business judgment pursuant to
this Agreement, or using reasonable business judgment. 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 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. 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 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 (which 5 Business Day period shall run
concurrently with
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the time periods set forth in the Primary Servicing Agreement with respect to
such actions) and (ii) within 10 Business Days of having been notified thereof
in respect of actions relating to Specially Serviced Mortgage Loans and having
been provided with all reasonably requested information with respect thereto (it
being understood and agreed that 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 of a Mortgage Loan or A/B
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 or A/B
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 or A/B Mortgage Loan that is not otherwise
expressly provided for under the Mortgage Loan documents;
(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
or A/B Mortgage Loan;
(ix) any release of collateral for a Specially Serviced
Mortgage Loan or A/B Mortgage Loan (other than in accordance with the terms of
or upon satisfaction of, such Mortgage Loan);
(x) any franchise changes or certain 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 or A/B
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.
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Notwithstanding the foregoing, the Operating Adviser shall not be
entitled to the consultation rights described above (i) in respect of any
non-Specially Serviced Mortgage Loan that has an unpaid Principal Balance of
less than $2,500,000 and (ii) if such action has already been approved or deemed
approved in accordance with Section 9.32 of this Agreement.
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 and the Paying Agent
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)). The Trustee shall notify the Paying Agent promptly upon its receipt of
the direction set forth above. The Operating Adviser shall be responsible for
its own expenses.
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,
the REMIC Provisions 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 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
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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 or consultation rights, if any, 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, in accordance with the Servicing Standard,
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, to the extent provided for in the related Intercreditor Agreement, 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.
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
accordance with the Servicing Standard, 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.
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ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation
of All Mortgage Loans.
(a) The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent, to
make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders and the Class R-III 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
(iii) the termination of the Trust pursuant to Section 10.1(c) 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 Paying Agent 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 Paying Agent shall promptly forward such notice to the
Trustee, the Depositor, the Holder of a majority of the Controlling Class, the
Special Servicer, the Master 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 Paying Agent'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 a majority of the Controlling
Class, the Holder of a majority 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 REMIC I. The Trustee shall consult with the
Placement Agents and the Underwriters or their respective
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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 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 such determination which shall be paid for by the buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Holder of a majority of the Controlling Class, the Holder of a
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) If at any time the Holders of the Class R-I Certificates own
100% of the REMIC III 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, and (ii) the payment of any and all costs associated with such
termination. Such termination shall be made in accordance with Section 10.3.
(d) Upon the termination of the Trust, any funds or other
property held by the Class P Grantor Trust shall be distributed to the Class P
Certificateholders on a pro rata basis, whether or not the respective
Certificate Balances of the Class P Certificates have been reduced to zero.
(e) 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
Paying Agent, the Rating Agencies, the Holders of the Residual Certificates and
the REMIC Regular Certificates 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 Residual Certificates and the REMIC Regular
Certificates will be made, and upon presentation and surrender of the Residual
Certificates and the REMIC Regular 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 Residual Certificates and the REMIC
Regular 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 given to Holders of the
Residual Certificates and the REMIC Regular Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the
Residual Certificates and the REMIC Regular Certificates shall terminate and the
Trustee shall terminate, or request
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the Master Servicer and the Paying Agent to terminate, the Certificate Account
and the Distribution Account and any other account or fund maintained with
respect to the Certificates, subject to the Paying Agent's obligation hereunder
to hold all amounts payable to the Holders of the Residual Certificates and the
REMIC Regular Certificates in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Residual Certificates and the REMIC Regular
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 Holders of the Residual Certificates and
the REMIC Regular Certificates to surrender their certificates evidencing the
Residual Certificates and the REMIC Regular Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any Residual Certificates and the REMIC Regular Certificates
shall not have been surrendered for cancellation, the Certificate Registrar may
take appropriate steps to contact the remaining Holders of the Residual
Certificates and the REMIC Regular Certificates 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 Residual Certificates and the REMIC Regular Certificates shall not have
been surrendered for cancellation, the Paying Agent 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 Holder of a Residual Certificates
and the REMIC Regular Certificates 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 Paying Agent 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 seeks, and the Paying Agent subsequently 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, the Trustee and the Paying Agent
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 Master Servicer shall prepare
and the Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall adopt a plan
of complete liquidation of the REMIC I 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
specified in Section 10.2(a) and shall be specified in a statement attached to
the federal income tax return of each REMIC Pool;
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(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 Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) 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, (B) to the Holders of the Class R-II Certificates all assets of REMIC
II remaining after such final payment of the REMIC II Regular Interests and (C)
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 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 or Class
R-III Certificates, respectively, the Holders thereof hereby (i) authorize 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 and Class R-III 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 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.
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(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 Paying Agent is not acting as Certificate Registrar,
the Certificate Registrar will furnish or cause to be furnished to the Trustee
and the Paying Agent, within fifteen days after receipt by the Certificate
Registrar of a request by the Trustee or the Paying Agent, as the case may be,
in writing, a list, in such form as the Trustee or the Paying Agent, 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 Paying Agent
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 Paying Agent 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.
(c) Every Holder, by receiving and holding a Certificate, agrees
with the Depositor, the Certificate Registrar, the Paying Agent, the Master
Servicer and the Trustee that neither the Depositor, the Certificate Registrar,
the Paying Agent, 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.
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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 and
the Paying Agent. 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, the
Depositor and the Paying Agent, 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 nor the Paying Agent 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, the Paying Agent or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool
and the Class P Grantor Trust, as applicable.
Section 12.1 REMIC Administration.
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest
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payable thereon), such amounts with respect thereto as shall from time to time
be held in the Certificate Account, the Interest Reserve Account, the Reserve
Account and the Distribution Account (exclusive of the Excess Interest
Sub-account), the Insurance Policies and any related amounts in the REO Account
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 Class R-I Certificates shall be designated as the sole Class of
"residual interests" in REMIC I.
An election will be made by the Paying Agent 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 Paying Agent 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
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-M, Class A-J, Class
X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O and Class P Certificates
(but other than the Class P Grantor Trust Interest) 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 and the Paying Agent 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 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 within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent 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 Paying Agent 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
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Paying Agent, 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 Paying Agent 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 Paying Agent shall prepare and file, or cause to be
prepared and filed, all of each REMIC Pool's federal and state income or
franchise tax and information returns as such REMIC Pool's direct
representative, and the Trustee shall sign such returns; the expenses of
preparing and filing such returns shall be borne by the Paying Agent, except
that if additional state tax returns are required to be filed in more than three
states, the Paying Agent 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 Paying Agent 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 Paying Agent to enable it to
perform its obligations under this subsection, and the Paying Agent shall be
entitled to conclusively rely on such information in the performance of its
obligations hereunder. The Depositor shall indemnify the Trust, the Trustee and
the Paying Agent 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 Trustee, the
Paying Agent and the Depositor for any liability or assessment against the
Trustee, the Depositor, the Paying Agent 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
resulting from errors in the information provided by the Master Servicer or the
Special Servicer, as the case may be, or caused by the negligence, willful
misconduct or bad faith of the Master Servicer or the Special Servicer, as the
case may be. The Paying Agent 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 Paying Agent. 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 Paying Agent or the
Special Servicer, or the termination of this Agreement.
(f) The Paying Agent 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 Paying Agent shall
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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 Paying Agent 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 Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent 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 Paying Agent 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 Paying Agent) to the extent required by applicable law. The Paying Agent
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 and Class R-III Certificates, respectively (or of the
greatest percentage of such Class R-I, Class R-II and Class R-III Certificates
if no Holder holds more than 50% thereof), shall be the applicable REMIC Pool's
Tax Matters Person. The duties of the Tax Matters Person for each of the REMIC
Pools are hereby delegated to the Paying Agent 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 Paying Agent as their agent and attorney in fact. If the Code
or applicable regulations prohibits the Paying Agent from signing any applicable
Internal Revenue Service, court or other administrative documents or from acting
as Tax Matters Person (as an agent or otherwise), the Paying Agent 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 Paying Agent 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 Paying Agent, 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, Paying Agent, 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 Class P 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 Paying Agent, the Master Servicer, the
Special Servicer, and the Holders of Residual Certificates shall not take any
action or fail to take any action or
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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 (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 Class P Grantor Trust as a grantor trust unless the Trustee
and the Paying Agent have 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, the Paying Agent or the Holders of the Residual Certificates to
undertake such action.
(k) In the event that any tax is imposed on any REMIC 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 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 Paying Agent, 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 amounts payable by the Trust in respect of taxes
shall be paid by the Paying Agent out of amounts on deposit in the Distribution
Account.
(l) The Paying Agent and, to the extent that books and 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 Paying Agent, 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 Paying Agent to perform its duties as
set forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten (10)
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days after the Closing Date all information or data that the Paying Agent
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 Paying Agent or its designee,
promptly upon request therefor, any such additional information or data within
the Depositor's possession or knowledge that the Paying Agent may, from time to
time, reasonably request in order to enable the Paying Agent to perform its
duties as set forth herein. The Paying Agent 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, the Paying Agent and each REMIC Pool for any
losses, liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Paying Agent and each REMIC Pool arising
from any errors or miscalculations of the Paying Agent 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 Paying Agent (but not resulting
from the methodology employed by the Paying Agent) on a timely basis and such
indemnification shall survive the termination of this Agreement and the
termination or resignation of the Paying Agent.
The Paying Agent 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
professional advisers of the Paying Agent 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 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 October 2013.
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
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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 Paying
Agent, 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, Paying Agent 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.
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 either the Trustee or
the Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, 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, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), 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
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, 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 or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
Section 12.5 Class P Grantor Trust.
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(a) The assets of the Class P 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 Paying Agent for the benefit of the Holders of
the Class P Grantor Trust Interest, represented by the Class P Certificates,
which Class P 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 Class P Grantor Trust will be treated
as a separate 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 Paying Agent vary the assets of the Class P 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 P Certificates. The Paying Agent shall be deemed
to hold and shall account for each of the Class P Grantor Trust separate and
apart from the assets of REMIC I, REMIC II and REMIC III created hereunder.
(b) The parties intend that the portions of the Trust consisting
of the Class P 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 Paying Agent shall furnish or cause to be furnished to the Class P
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 Class P Grantor Trust and with
respect to the Class P Grantor Trust, on the cash or accrual method of
accounting and so as to enable reporting to Holders of Class P Certificates
based on their annual accounting period, at the time or times and in the manner
required by the Code.
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness. Except with
respect to Section 13.9, Section 13.10 and Section 13.11, the parties hereto
acknowledge and agree that the purpose of Article XIII of this Agreement is to
facilitate compliance by the Depositor with the provisions of Regulation AB and
related rules and regulations of the Commission. Neither the Depositor nor the
Paying Agent shall exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or (except
with respect to Section 13.9, Section 13.10 or Section 13.11) for purposes other
than compliance with the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx
Act and, in each case, the rules and regulations of the Commission thereunder.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, or otherwise, and agree to comply with
requests made by the Depositor or the Paying Agent in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
the requirements of Regulation AB. In connection with the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Series 2006-TOP24 transaction, each of the
Master Servicer, the Special Servicer, any Primary Servicer, the Trustee and the
Paying Agent shall cooperate fully with the Depositor and the Paying Agent, as
applicable, to deliver or make available to the Depositor or the Paying Agent,
as applicable (including any of their assignees or designees), any and all
statements, reports, certifications, records and any other information in its
possession and necessary in the good faith determination of the Depositor or the
Paying Agent,
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as applicable, to permit the Depositor to comply with the provisions of
Regulation AB, together with such disclosure relating to the Master Servicer,
the Special Servicer, the Primary Servicer, the Trustee and the Paying Agent, as
applicable, and any Sub-Servicer, or the Servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Paying Agent, as applicable, to be
necessary in order to effect such compliance. None of the Master Servicer, the
Primary Servicer, the Trustee or the Special Servicer are responsible for filing
any Exchange Act report with the Commission.
Section 13.2 Information to be Provided by the Master Servicer,
the Special Servicer, any Primary Servicer and the Paying Agent.
(a) For so long as the Trust, and with respect to any Serviced
Companion Mortgage Loan that is deposited into an Other Securitization, such
Other Securitization, is subject to the reporting requirements of the Exchange
Act, the Master Servicer, the Special Servicer, any Primary Servicer, the
Trustee and the Paying Agent shall (and each of the Master Servicer, the Special
Servicer, any Primary Servicer, the Trustee and the Paying Agent, as applicable,
shall (a) use reasonable efforts to cause each Sub-Servicer (other than any
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b)
cause each Sub-Servicer (other than any party to this Agreement) with which it
has entered into a servicing relationship after the Closing Date with respect to
the Mortgage Loans, to) (i) notify the Depositor, or the depositor in the Other
Securitization with respect to the related Serviced Companion Mortgage Loan, in
writing of (A) any litigation or governmental proceedings pending against the
Master Servicer, the Special Servicer, any Primary Servicer, the Trustee, the
Paying Agent or such Sub-Servicer, as the case may be, or with respect to any of
its property, that, in each such case, would be material to Certificateholders
and (B) any affiliations of the type described in Item 1119 of Regulation AB or
relationships of the type described in Item 1119 of Regulation AB that develop
following the Closing Date between the Master Servicer, the Special Servicer,
any Primary Servicer, the Trustee or the Paying Agent (or, if applicable, any
Sub-Servicer) (and any other parties identified in writing by the requesting
party), on the one hand, and any other such party on the other, as the case may
be, as such affiliation or relationship relates to the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Series 2006-TOP24 transaction (or an Other
Securitization, if applicable), and (ii) provide to the Depositor a description
of such legal proceedings, affiliations or relationships, in each case, in a
form that would enable the Depositor to satisfy its reporting obligations under
Item 1117 or 1119 of Regulation AB, as applicable.
(b) In connection with the succession to the Master Servicer, the
Special Servicer, any Primary Servicer, any Additional Servicer, any
Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any
Person (i) into which the Master Servicer, the Special Servicer, any Primary
Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case
may be, may be merged or consolidated, or (ii) which may be appointed as a
successor to the Master Servicer, the Special Servicer, any Primary Servicer,
any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be,
the Master Servicer, the Special Servicer, any Primary Servicer, any Additional
Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each
of the Master Servicer, the Special Servicer, any Primary Servicer or the
Trustee, as applicable, shall (a) use reasonable efforts to cause each
Additional Servicer and each Sub-Servicer (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b)
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cause each Additional Servicer and each Sub-Servicer (other than any party to
this Agreement) with which it has entered into a servicing relationship after
the Closing Date with respect to the Mortgage Loans, to) provide to the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, as long as such disclosure prior to such effective
date would not be violative of any applicable law or confidentiality agreement,
otherwise no later than the effective date of such succession or appointment,
(x) written notice to the Depositor of such succession or appointment and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor so that it may comply with its
reporting obligation under Item 6.02 of Form 8-K as it relates to the Servicing
Function with respect to any class of Certificates.
(c) With respect to any Serviced Companion Mortgage Loan that is
deposited into an Other Securitization, the Master Servicer, any Primary
Servicer (if applicable), the Special Servicer, the Trustee and the Paying Agent
will take all actions reasonably requested of it to enable such Other
Securitization to comply with Regulation AB. For the avoidance of doubt and
without limiting the foregoing, the Master Servicer, the Special Servicer, any
Primary Servicer, the Trustee and the Paying Agent will, if requested by the
depositor for such Other Securitization, provide disclosure (in substantially
the same form as the disclosure provided in the Prospectus Supplement, to the
extent necessary to comply with Regulation AB) regarding the Master Servicer,
the Primary Servicer, the Special Servicer, the Trustee and the Paying Agent,
respectively, as reasonably and in good faith determined by the depositor in
such Other Securitization to be required by Regulation AB for inclusion in
disclosure documents with respect to such Other Securitization, together with an
opinion of counsel as to the compliance of such disclosure with the requirements
of Regulation AB and indemnification substantially similar to that provided in
connection with the offering of the Certificates regarding damages incurred in
connection with the non-compliance with the requirements of Regulation AB
relating to the disclosure referred to in this sentence.
Section 13.3 Filing Obligations.
The Master Servicer, the Special Servicer, any Primary Servicer,
the Paying Agent, the Trustee and each Sub-Servicer shall, and the Master
Servicer, the Special Servicer, any Primary Servicer, the Paying Agent, the
Trustee and each Sub-Servicer, as applicable, shall (a) use reasonable efforts
to cause each Sub-Servicer (other than any party to this Agreement) with which
it has entered into a servicing relationship on or prior to the Closing Date
with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than
any party to this Agreement) with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans, to,
reasonably cooperate with the Depositor in connection with the satisfaction of
the Trust's reporting requirements under the Exchange Act.
Section 13.4 Form 10-D Filings. Within 15 calendar days after
each Distribution Date (the "10-D Filing Deadline") (subject to permitted
extensions under the Exchange Act), the Paying Agent shall prepare and file on
behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Paying Agent shall file each Form
10-D with a copy of the related Monthly Certificateholder's Report attached
thereto. Any necessary disclosure in addition to the Monthly Certificateholder's
Report that is required to be included on Form 10-D ("Additional Form 10-D
Disclosure") shall,
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pursuant to the immediately succeeding paragraph, be reported by the parties set
forth on Schedule XV and directed to the Depositor and the Paying Agent for
approval by the Depositor. The Paying Agent will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure (other than such Additional Form 10-D Disclosure which is to be
reported by it as set forth on Schedule XV) absent such reporting, direction and
approval.
For so long as the Trust is subject to the reporting requirements
of the Exchange Act, within 5 calendar days after the related Distribution Date,
each Person identified on Schedule XV shall be required to provide to the
Depositor and the Paying Agent (or, with respect to any Serviced Companion
Mortgage Loan that is deposited into an Other Securitization, the depositor and
the trustee in such Other Securitization), to the extent known by such person,
the form and substance of the corresponding Additional Form 10-D Disclosure set
forth on Schedule XV, if applicable, and in a form readily convertible to an
XXXXX-compatible format, or in such other form as otherwise agreed by the
Depositor, the Paying Agent and such party. Each Person set forth on Schedule XV
hereto shall include with such Additional Form 10-D Disclosure an Additional
Disclosure Notification in the form attached hereto as Schedule XVIII. The
Paying Agent shall provide prompt notice to the Depositor (or, with respect to a
Serviced Companion Loan deposited into an Other Securitization, the depositor
and the trustee in such Other Securitization) to the extent the Paying Agent is
notified of an event reportable on Form 10-D for which it has not received the
necessary Additional Form 10-D Disclosure from such party. The Paying Agent
shall have no duty under this Agreement to monitor or enforce the performance by
the parties listed on Schedule XV of their duties under this paragraph or
proactively solicit or procure from any such parties any Additional Form 10-D
Disclosure information. Unless otherwise directed by the Depositor, and subject
to any comments received to such disclosure from the Depositor by the 2nd
calendar day after such 5th calendar day after the related Distribution Date,
the Paying Agent shall include the form and substance of the Additional Form
10-D Disclosure on the related Form 10-D. The Depositor will be responsible for
any reasonable fees charged and out-of-pocket expenses incurred by the Paying
Agent in connection with including any Additional Form 10-D Disclosure on Form
10-D pursuant to this paragraph. Any notice delivered to the Paying Agent
pursuant to this paragraph shall be delivered by facsimile to (000) 000-0000 and
by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may
hereafter be furnished by the Paying Agent to the other parties in writing.
On or prior to the end of business on the 11th calendar day (or,
if such day is not a Business Day, the immediately preceding Business Day) after
the related Distribution Date the Paying Agent shall prepare and deliver
electronically the Form 10-D to the Depositor for review. No later than the end
of business on the 12th calendar day after the related Distribution Date, the
Depositor shall notify the Paying Agent in writing (which may be furnished
electronically) of any changes to such Form 10-D. No later than the end of
business on the 13th calendar day after the related Distribution Date, the
Depositor shall notify the Paying Agent in writing (which may be furnished
electronically) of its approval of such Form 10-D, and shall sign the Form 10-D
and return an electronic or fax copy of such signed Form 10-D (with an original
executed hard copy to follow by overnight mail) to the Paying Agent. Form 10-D
requires the registrant to indicate (by checking "yes" or "no") that it "(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby instructs the
Paying Agent, with respect to each Form 10-D, to check "yes" for each item
unless the Paying Agent has received prior written
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notice (which may be furnished electronically) from the Depositor that the
answer should be "no" for an item which notice shall be delivered to the Paying
Agent no later than the end of business on the 13th calendar day after the
related Distribution Date. The Paying Agent shall (a) file such Form 10-D not
later than 5:30 p.m. (New York City time) on the 15th calendar day after the
related Distribution Date or (b) use commercially reasonable best efforts to
file such Form 10-D, if the Paying Agent received the signed Form 10-D after the
signing deadline set forth in Section 13.14, not later than 5:30 p.m. (New York
City time) on the 15th calendar day after the related Distribution Date;
provided that if the Paying Agent cannot file the Form 10-D prior to the
deadline set forth in the immediately preceding clause (b), the Paying Agent
shall file such Form 10-D as soon as possible thereafter. If a Form 10-D cannot
be filed on time or if a previously filed Form 10-D needs to be amended, the
Paying Agent will follow the procedures set forth in Section 13.8(b). After
filing with the Commission, the Paying Agent shall promptly, pursuant to Section
5.4, make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Paying Agent. The parties to this Agreement
acknowledge (and each Additional Servicer and each Servicing Function
Participant shall be required to acknowledge) that the performance by the Paying
Agent of its duties under this Section 13.4 related to the timely preparation
and filing of Form 10-D is contingent upon such parties (and, to the extent
applicable, any Additional Servicer or Servicing Function Participant) observing
all applicable deadlines in the performance of their duties under this Section
13.4. The Paying Agent shall have no liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution or file such Form 10-D where such failure results from the Paying
Agent's inability or failure to receive on a timely basis any information from
any other party hereto needed to prepare, arrange for execution or file such
Form 10-D, not resulting from its own negligence, bad faith or willful
misconduct. Any notices or draft Form 10-D delivered to the Depositor pursuant
to this Section 13.4 shall be delivered by email to XxxXXXxxxxxxxxxxxx@xxxx.xxx,
or such other address as may hereafter be furnished by the Depositor to the
other parties in writing.
Section 13.5 Form 10-K Filings.
On or prior to 5:30 p.m. (New York City time) on the 90th
calendar day after the end of each fiscal year of the Trust or such earlier date
as may be required by the Exchange Act (the "10-K Filing Deadline") (it being
understood that the fiscal year for the Trust ends on December 31st of each
year), commencing in March 2007, the Paying Agent shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Paying Agent within the
applicable time frames set forth in this Agreement, (i) an annual compliance
statement for each Reporting Servicer, as set forth under Section 13.9, (ii)(A)
the annual reports on assessment of compliance with Servicing Criteria for each
Reporting Servicer, as set forth under Section 13.10, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria described
under Section 13.10 identifies any material instance of noncompliance,
disclosure identifying
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such instance of noncompliance, or if any Reporting Servicer's report on
assessment of compliance with Servicing Criteria described under Section 13.10
is not included as an exhibit to such Form 10-K, disclosure that such report is
not included and an explanation as to why such report is not included, (iii)(A)
the registered public accounting firm attestation report for each Reporting
Servicer, as set forth under Section 13.11, and (B) if any registered public
accounting firm attestation report described under Section 13.11 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation as to why such report is not included,
and (iv) a Xxxxxxxx-Xxxxx Certification as set forth in Section 13.6. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall, pursuant
to the paragraph immediately below, be reported by the parties set forth on
Schedule XVI and directed to the Depositor and the Paying Agent for approval by
the Depositor. The Paying Agent will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure (other
than such Additional Form 10-K Disclosure which is to be reported by it as set
forth on Schedule XVI) absent such reporting, direction and approval.
For so long as the Trust, and, with respect to any Serviced
Companion Mortgage Loan, the trust in the related Other Securitization, are
subject to the reporting requirements of the Exchange Act, no later than March
7th of each year subsequent to the fiscal year that the Trust is subject to the
Exchange Act reporting requirements, commencing in 2007, each Person identified
on Schedule XVI shall be required to provide to the Depositor (or, with respect
to any Serviced Companion Mortgage Loan that is deposited into an Other
Securitization, the depositor and the trustee in such Other Securitization) and
the Paying Agent, to the extent known by such Person, the form and substance of
the corresponding Additional Form 10-K Disclosure as set forth on Schedule XVI,
if applicable, and in a form that is readily convertible to an XXXXX-compatible
form (to the extent available to such party in such format), or in such other
form as otherwise agreed by the Depositor, the Paying Agent and such Person.
Each Person set forth on Schedule XVI hereto shall include with such Additional
Form 10-K Disclosure an Additional Disclosure Notification in the form attached
hereto as Schedule XVIII. The Paying Agent shall, at any time prior to filing
the related Form 10-K, provide prompt notice to the Depositor to the extent the
Paying Agent is notified of an event reportable on Form 10-K for which it has
not received the necessary Additional Form 10-K Disclosure from such party. The
Paying Agent has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Schedule XVI of their duties under this
paragraph or to proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. Unless otherwise directed by the Depositor,
and subject to any comments received to such disclosure from the Depositor by
March 15th, the Paying Agent shall include the form and substance of the
Additional Form 10-K Disclosure on the related Form 10-K. The Depositor will be
responsible for any reasonable fees charged and out-of-pocket expenses incurred
by the Paying Agent in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph. Any notice delivered to the
Paying Agent pursuant to this paragraph shall be delivered by facsimile to (410)
715-2380 and by email to xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other
address as may hereafter be furnished by the Paying Agent to the other parties
in writing.
On or prior to the end of business on March 23rd (or, if such day
is not a Business Day, the immediately preceding Business Day), the Paying Agent
shall prepare and deliver electronically a draft copy of the Form 10-K to the
Depositor for review. No later than 5:00 p.m. (New York City time) on the 3rd
Business Day prior to the 10-K Filing Deadline, a senior officer in charge of
securitization of the Depositor shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Paying Agent. Form 10-K requires the
registrant to indicate (by checking "yes" or "no") that it "(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange
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Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days." The Depositor hereby instructs the
Paying Agent, with respect to each Form 10-K, to check "yes" for each item
unless the Paying Agent has received prior written notice (which may be
furnished electronically) from the Depositor that the answer should be "no" for
an item which notice shall be delivered to the Paying Agent no later than 5:00
p.m. (New York City time) on the 3rd Business Day prior to the 10-K Filing
Deadline. The Paying Agent shall be entitled to rely on such representations in
preparing, executing and/or filing any Form 10-K. If a Form 10-K cannot be filed
on time or if a previously filed Form 10-K needs to be amended, the Paying Agent
will follow the procedures set forth in Section 13.8(b). After filing with the
Commission, the Paying Agent shall, pursuant to Section 5.4, make available on
its internet website a final executed copy of each Form 10-K prepared and filed
by the Paying Agent. The signing party at the Depositor can be contacted at the
address identified in Section 14.5. The parties to this Agreement acknowledge
(and each Additional Servicer and each Servicing Function Participant shall be
required to acknowledge) that the performance by the Paying Agent of its duties
under this Section 13.5 related to the timely preparation and filing of Form
10-K is contingent upon such parties (and, to the extent applicable, any
Additional Servicer or Servicing Function Participant) observing all applicable
deadlines in the performance of their duties under this Article XIII. The Paying
Agent shall have no liability with respect to any failure to properly prepare,
arrange for execution or file such Form 10-K resulting from the Paying Agent's
inability or failure to receive on a timely basis any information from any other
party hereto needed to prepare, arrange for execution or file such Form 10-K on
a timely basis, not resulting from its own negligence, bad faith or willful
misconduct. Any notices or draft Form 10-K delivered to the Depositor pursuant
to this Section 13.5 shall be delivered by email to XxxXXXxxxxxxxxxxxx@xxxx.xxx,
or such other address as may hereafter be furnished by the Depositor to the
other parties in writing.
If a Form 10-K is permitted to be filed notwithstanding any
missing information for inclusion therein, the Paying Agent shall nonetheless
file such Form 10-K and, if Regulation AB (or Form 10-K itself) permits the
inclusion of an explanation why such information is missing, the Paying Agent
shall include such explanation of the circumstances (such explanation to be
based solely on such notice regarding the same as may have been delivered to the
Paying Agent by the person responsible for the missing information).
Section 13.6 Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit CC attached hereto, required to
be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. Each Reporting
Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to
cause each Servicing Function Participant (other than any party to this
Agreement) with which it has entered into a servicing relationship on or prior
to the Closing Date with respect to the Mortgage Loans and (b) cause each
Servicing Function Participant (other than any party to this Agreement) with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to, provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by noon (New York City
time) on March 15th (with no grace period) of each year subsequent to the fiscal
year in which the Trust is subject to the reporting requirements of the Exchange
Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Performance
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Certification"), in the form attached hereto as Exhibit CC-1, upon which the
Certifying Person, the entity for which the Certifying Person acts as an
officer, and such entity's officers, directors and Affiliates (collectively with
the Certifying Person, "Certification Parties") can reasonably rely. The senior
officer in charge of securitization of the Depositor shall serve as the
Certifying Person on behalf of the Trust. Such officer of the Certifying Person
can be contacted at the address identified in Section 14.5. If any Reporting
Servicer is terminated or resigns pursuant to the terms of this Agreement, or
any applicable sub-servicing agreement or primary servicing agreement, as the
case may be, such Reporting Servicer shall provide a Performance Certification
and a reliance certificate to the Certifying Person pursuant to this Section
13.6 with respect to the period of time it was subject to this Agreement or the
applicable sub-servicing or primary servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable
reliance provision enabling the Certification Parties to rely upon each (i)
annual compliance statement provided pursuant to Section 13.9, (ii) annual
report on assessment of compliance with Servicing Criteria provided pursuant to
Section 13.10 and (iii) registered public accounting firm attestation report
provided pursuant to Section 13.11 and shall include a certification that each
such annual report on assessment of compliance discloses any material instances
of noncompliance described to the registered public accountants of such
Reporting Servicer to enable such accountants to render the attestation provided
for in Section 13.11.
If any Serviced Companion Mortgage Loan is deposited into a
commercial mortgage securitization, and the applicable Reporting Servicer is
provided with contact information therefor, such Reporting Servicer shall
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to
an Other 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), upon which such certifying
person, the entity for which the certifying person acts as an officer, and such
entity's officers, directors and Affiliates can reasonably rely. With respect to
any Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, the Master Servicer will use its reasonable
efforts to procure a Xxxxxxxx-Xxxxx back-up certification from the Non-Serviced
Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan Special Servicer,
Non-Servicer Mortgage Loan Paying Agent and the Non-Serviced Mortgage Loan
Trustee in form and substance similar to a Performance Certification or in the
form specified in the Non-Serviced Mortgage Loan Pooling and Servicing
Agreement. The Master Servicer shall promptly forward to the Paying Agent and
the Depositor any such Xxxxxxxx-Xxxxx back-up certification received by the
Master Servicer.
Section 13.7 Form 8-K Filings.
Within four (4) Business Days after the occurrence of an event
requiring disclosure (the "8-K Filing Deadline") under Form 8-K (each a
"Reportable Event"), the Paying Agent shall prepare and file on behalf of the
Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall, pursuant to the paragraph immediately below, be reported by
any party set forth on Schedule XVII to which such Reportable Event relates and
such Form 8-K Disclosure Information shall be directed to the
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Depositor and the Paying Agent for approval by the Depositor. The Paying Agent
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information (other than such Form 8-K Disclosure
Information which is to be reported by it as set forth on Schedule XVII) absent
such reporting, direction and approval.
As set forth on Schedule XVII hereto, for so long as the Trust,
and, with respect to any Serviced Companion Mortgage Loan, the trust in the
related Other Securitization, are subject to the Exchange Act reporting
requirements, no later than noon (New York City time) on the 2nd Business Day
after the occurrence of a Reportable Event the applicable Person identified on
such Schedule XVII shall be required to provide written notice to the Depositor
(or with respect to any Serviced Companion Mortgage Loan that is deposited into
an Other Securitization, the depositor and the trustee in such Other
Securitization) and the Paying Agent of, to the extent known by such Person, the
form and substance of the corresponding Form 8-K Disclosure Information, as set
forth on Schedule XVII, if applicable, and in a form that is readily convertible
to an XXXXX-compatible form (to the extent available to such party in such
format), or in such other form as otherwise agreed by the Depositor, the Paying
Agent and such Party. Each Person set forth on Schedule XVII hereto shall
include with such Form 8-K Disclosure Information an Additional Disclosure
Notification in the form attached hereto as Schedule XVII. Unless otherwise
directed by the Depositor, and subject to any comments received to such
disclosure from the Depositor by the close of business on the 2nd Business Day
after such Reportable Event, the Paying Agent shall include the form and
substance of the Form 8-K Disclosure Information on the related Form 8-K. The
Depositor will be responsible for any reasonable fees charged and out-of-pocket
expenses incurred by the Paying Agent in connection with including any Form 8-K
Disclosure Information on Form 8-K pursuant to this paragraph. Any notice
delivered to the Paying Agent pursuant to this paragraph shall be delivered by
facsimile to (000) 000-0000 and by email to
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Paying Agent to the other parties in writing.
No later than noon (New York City time) on the 3rd Business Day
after the Reportable Event, the Paying Agent shall prepare the Form 8-K. No
later than the end of business on the 3rd Business Day after the Reportable
Event, the Depositor (or with respect to any Serviced Companion Mortgage Loan
that is deposited into an Other Securitization, the depositor in such Other
Securitization) shall sign the Form 8-K. If so directed by the Depositor, the
Paying Agent shall (a) file such Form 8-K not later than 5:30 p.m. (New York
City time) on the 4th Business Day after the related Reportable Event or (b) use
reasonable best efforts to file such Form 8-K, if the Paying Agent received the
signed Form 8-K after the end of business on the 3rd Business Day after the
Reportable Event, not later than 5:30 pm (New York City time) on the 4th
Business Day after the related Reportable Event; provided that if the Paying
Agent cannot file the Form 8-K prior to the deadline set forth in the
immediately preceding clause (b), the Paying Agent shall file such Form 8-K as
soon as possible thereafter. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Paying Agent will follow the
procedures set forth in Section 13.8(b). After filing with the Commission, the
Paying Agent will, pursuant to Section 5.4, make available on its internet
website a final executed copy of each Form 8-K prepared and filed by the Paying
Agent. The parties to this Agreement acknowledge (and each Additional Servicer
and each Servicing Function Participant shall be required to acknowledge) that
the performance by the Paying Agent of its duties under this Section 13.7
related to the timely preparation and filing of Form 8-K is contingent upon such
parties (and, to the extent applicable, any Additional Servicer or Servicing
Function Participant)
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observing all applicable deadlines in the performance of their duties under this
Section 13.7. The Paying Agent shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare
and/or timely file such Form 8-K, where such failure results from the Paying
Agent's inability or failure to receive, on a timely basis, any information from
any other party hereto needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct; provided, however, that the Paying Agent shall prepare, arrange for
execution and file such Form 8-K where such information from such other party is
not received on a timely basis or not provided by such other party. Any notices
or draft Form 8-K delivered to the Depositor pursuant to this Section 13.7 shall
be delivered by email to XxxXXXxxxxxxxxxxxx@xxxx.xxx, or such other address as
may hereafter be furnished by the Depositor to the other parties in writing.
Notwithstanding the second preceding paragraph, the Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the
Trustee, each Sub-Servicer and each Servicing Function Participant, shall
promptly notify (and the Master Servicer, the Special Servicer, the Primary
Servicer, the Paying Agent, the Trustee each Sub-Servicer and each Servicing
Function Participant shall (a) use reasonable efforts to cause each Sub-Servicer
and each Servicing Function Participant (other than any party to this Agreement)
with which it has entered into a servicing relationship on or prior to the
Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer
and each Servicing Function Participant (other than any party to this Agreement)
with which it has entered into a servicing relationship after the Closing Date
with respect to the Mortgage Loans, to promptly notify) the Depositor and the
Paying Agent, but in no event later than noon on the 2nd Business Day after its
occurrence, of any Reportable Event of which it has actual knowledge to the
extent such party is identified as a "Responsible Party" on Schedule XVII with
regard to such Reportable Event.
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports.
(a) On or before January 30 of the first year in which the Paying
Agent is able to do so under applicable law, the Paying Agent shall prepare and
file a Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act. After the filing of
Form 15, the obligations of the parties to this Agreement under Sections 13.4,
13.5 and 13.7 (and the obligations of the Primary Servicer under clauses (i),
(ii) and (iii) of Section 5.13(c) of the Primary Servicing Agreement) shall be
suspended for so long as neither the Trust nor, with respect to any Serviced
Companion Mortgage Loan, the trust in the related Other Securitization, is
subject to the reporting requirements of the Exchange Act. The Paying Agent
shall provide each Reporting Servicer with notice (which notice may be sent via
facsimile or by email) if the Paying Agent does not file such Form 15 Suspension
Notification pursuant to this Section 13.8(a).
(b) The Paying Agent shall promptly notify the Depositor (which
notice may be sent by facsimile or by email and which shall include the identity
of those Reporting Servicers who did not deliver such information) and each
Reporting Servicer that failed to deliver such information required to be
delivered by it under this Agreement, if all, or any portion of, any required
disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K
required to be filed pursuant to this Agreement is not delivered to it within
the delivery deadlines set forth in this Agreement (including annual compliance
statements pursuant to Section 13.9,
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annual reports on assessment of compliance with servicing criteria pursuant to
Section 13.10 and attestation reports pursuant to Section 13.11). If the Paying
Agent is unable to timely file with the Commission all or any required portion
of any Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement
because required disclosure information either was not delivered to it or was
delivered to it after the delivery deadlines set forth in this Agreement or for
any other reason, the Paying Agent shall promptly notify the Depositor (which
may be sent by facsimile or by email, and which notice shall include the
identity of those Reporting Servicers who either did not deliver such
information or delivered such information to it after the delivery deadlines set
forth in this Agreement) and each Reporting Servicer that failed to make such
delivery. In the case of Form 10-D and Form 10-K, each such Reporting Servicer
shall cooperate with the Depositor and the Paying Agent to prepare and file a
Form 12b-25 and a Form 10-D/A and Form 10-K/A as applicable, pursuant to Rule
12b-25 of the Exchange Act, which forms shall be filed no later than one
calendar day after the original due date for the related Form 10-D or Form 10-K,
as applicable. In the case of Form 8-K, the Paying Agent shall, upon receipt of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D that
is required to be filed on behalf of the Trust. In the event that any previously
filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the Paying Agent
shall notify the Depositor and such other parties as may be required and such
parties shall cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form
10-K shall be signed, in the case of Form 15, Form 12b-25 or any amendment to
Form 8-K or Form 10-D, by a duly authorized officer of the Depositor, and in the
case of Form 10-K, by a senior officer of the Depositor in charge of
securitization. The parties to this Agreement acknowledge (and each Additional
Servicer and each Servicing Function Participant shall be required to
acknowledge) that the performance by the Paying Agent of its duties under this
Section 13.8 related to the timely preparation and filing of Form 15, a Form
12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon
such parties (and, to the extent applicable, any Additional Servicer or
Servicing Function Participant) performing their duties under this Section. The
Paying Agent shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file any such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D or
Form 10-K, where such failure results from the Paying Agent's inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
Section 13.9 Annual Compliance Statements. The Master Servicer,
the Special Servicer, the Primary Servicer and the Paying Agent and each
Sub-Servicer (each a "Certifying Servicer") shall (and the Master Servicer, the
Special Servicer, the Primary Servicer and the Paying Agent shall (a) use
reasonable efforts to cause each Additional Servicer and each Sub-Servicer with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans and (b) cause each Additional Servicer
and each Sub-Servicer with which it has entered into a servicing relationship
after the Closing Date with respect to the Mortgage Loans, to) deliver
electronically to the Depositor, the Paying Agent and the Trustee on or before
March 7th, with respect to any Additional Servicer and each Sub-Servicer
(excluding the Primary Servicer), or March 15th or if such day is not a Business
Day, the immediately preceding Business Day (with no cure period), with respect
to the Master Servicer,
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the Special Servicer, the Primary Servicer or the Paying Agent, of each year,
commencing in March 2007, an Officer's Certificate stating, as to the signer
thereof, that (A) a review of such Certifying Servicer's activities during the
preceding calendar year or portion thereof and of such Certifying Servicer's
performance under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, has been made
under such officer's supervision and (B) to the best of such officer's
knowledge, based on such review, such Certifying Servicer has fulfilled all its
obligations under this Agreement, or the applicable sub-servicing agreement or
primary servicing agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof. Each
Certifying Servicer shall, and the Master Servicer, the Special Servicer, the
Primary Servicer and the Paying Agent shall (a) use reasonable efforts to cause
each Additional Servicer and each Sub-Servicer with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with
which it has entered into a servicing relationship after the Closing Date with
respect to the Mortgage Loans, to, forward a copy of each such statement to the
Rating Agencies and the Operating Adviser. Promptly after receipt of each such
Officer's Certificate, the Depositor shall have the right to review such
Officer's Certificate and, if applicable, consult with each Certifying Servicer,
as applicable, as to the nature of any failures by such Certifying Servicer, in
the fulfillment of any of the Certifying Servicer's obligations hereunder or
under the applicable sub-servicing or primary servicing agreement. None of the
Certifying Servicers or any Additional Servicer or any Sub-Servicer shall be
required to deliver, or to endeavor to cause the delivery of, any such Officer's
Certificate until April 15, in the case of a Certifying Servicer, or April 1, in
the case of any Additional Servicer (excluding the Primary Servicer) or any
Sub-Servicer (excluding the Primary Servicer), in any given year so long as it
has received written confirmation (which shall be provided prior to March 1)
from the Depositor that a Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year.
If any Serviced Companion Mortgage Loan is deposited into an
Other Securitization, each Certifying Servicer, to the extent applicable, shall
provide, if requested by a party to the Other Pooling and Servicing Agreement,
an Officer's Certificate as set forth in this Section. With respect to any
Non-Serviced Mortgage Loan serviced under a Non-Serviced Mortgage Loan Pooling
and Servicing Agreement, the Master Servicer will use reasonable best efforts to
procure an Officer's Certificate as set forth in this Section, or in the form
specified in the applicable Non-Serviced Pooling and Servicing Agreement, from
the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced Mortgage Loan
Special Servicer and the Non-Serviced Mortgage Loan Trustee in form and
substance similar to the Officer's Certificate described in this Section. The
Master Servicer shall promptly forward to the Paying Agent and the Depositor any
such Officer's Certificate received by the Master Servicer.
Section 13.10 Annual Reports on Assessment of Compliance with
Servicing Criteria. By March 15th or if such day is not a Business Day, the
immediately preceding Business Day (with no cure period), with respect to the
Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent
and the Trustee, of each year, commencing in March 2007, the Master Servicer,
the Special Servicer (regardless of whether the Special Servicer has commenced
special servicing of any Mortgage Loan), the Paying Agent, the Primary Servicer
and the Trustee, each at its own expense, shall furnish electronically (and each
of the preceding
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parties, as applicable, shall (a) use reasonable efforts to cause, by March 7th,
each Servicing Function Participant (other than a party to this Agreement) with
which it has entered into a servicing relationship on or prior to the Closing
Date with respect to the Mortgage Loans and (b) cause, by March 7th, each
Servicing Function Participant (other than a party to this Agreement) with which
it has entered into a servicing relationship after the Closing Date with respect
to the Mortgage Loans, to furnish, each at its own expense), to the Trustee, the
Paying Agent and the Depositor, with a copy to the Rating Agencies and the
Operating Adviser, a report on an assessment of compliance with the Relevant
Servicing Criteria with respect to commercial mortgage backed securities
transactions taken as a whole involving such party that contains (A) a statement
by such Reporting Servicer of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such Reporting Servicer's assessment of compliance with the
Relevant Servicing Criteria as of and for the period ending the end of the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
13.5, including, if there has been any material instance of noncompliance with
the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such Reporting Servicer's
assessment of compliance with the Relevant Servicing Criteria as of and for such
period.
No later than the end of each fiscal year for the Trust for which
a Form 10-K is required to be filed, the Master Servicer, the Special Servicer,
the Primary Servicer and the Trustee shall each forward to the Paying Agent and
the Depositor the name and address of each Servicing Function Participant
engaged by it and what Relevant Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicer, the Special Servicer, the Primary
Servicer, the Trustee and each Sub-Servicer submit their respective assessments
by March 7th or March 15th, as applicable, to the Paying Agent, each such party
shall also at such time include, in its submission to the Paying Agent, the
assessment (and attestation pursuant to Section 13.11) of each Servicing
Function Participant engaged by it.
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor shall have the right to review each such report
and, if applicable, consult with the Master Servicer, the Special Servicer, the
Primary Servicer, the Paying Agent, the Trustee and any Servicing Function
Participant as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by the Master Servicer, the Primary Servicer, the
Special Servicer, the Paying Agent, the Trustee or any Servicing Function
Participant, respectively, and (ii) the Paying Agent shall confirm that the
assessments taken individually address the Relevant Servicing Criteria for each
party as set forth on Schedule XIV and notify the Depositor of any exceptions.
None of the Master Servicer, the Special Servicer, the Primary Servicer, the
Trustee or any Servicing Function Participant shall be required to deliver, or
to endeavor to cause the delivery of, any such reports until April 15 in the
case of the Master Servicer, the Special Servicer, the Primary Servicer or the
Trustee, or April 1 in the case of any Servicing Function Participant, in any
given year so long as it has received written confirmation (which shall be
provided prior to March 1) from the Depositor that a Form 10-K is not required
to be filed in respect of the Trust for the preceding calendar year. The parties
hereto acknowledge that a material instance of noncompliance with the Relevant
Servicing Criteria reported on an assessment of compliance pursuant to this
Section 13.10 by the Master Servicer, the Special
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Servicer, the Primary Servicer, the Paying Agent or the Trustee shall not, as a
result of being so reported, in and of itself, constitute a breach of such
parties' obligations, as applicable, under this Agreement unless otherwise
provided for in this Agreement.
If any Serviced Companion Mortgage Loan is deposited into an
Other Securitization, each of the Master Servicer, the Special Servicer
(regardless of whether the Special Servicer has commenced special servicing of
any Mortgage Loan), the Primary Servicer, if applicable, the Paying Agent and
the Trustee, each at its own expense, shall furnish (and each of the preceding
parties, as applicable, shall (a) use reasonable efforts to cause each Servicing
Function Participant (other than a party to this Agreement) with which it has
entered into a servicing relationship on or prior to the Closing Date with
respect to the Mortgage Loans and (b) cause each Servicing Function Participant
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to furnish, each at its own expense), if requested by a party to the
Other Pooling and Servicing Agreement, an annual report on assessment of
compliance as set forth in this Section and an attestation as set forth in
Section 13.11. With respect to any Non-Serviced Mortgage Loan serviced under a
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, the Master Servicer
will use reasonable best efforts to procure an annual report on assessment of
compliance as set forth in this Section and an attestation as set forth in
Section 13.11 from the Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Special Servicer, the Non-Serviced Mortgage Loan Paying Agent and
the Non-Serviced Mortgage Loan Trustee in form and substance similar to the
annual report on assessment of compliance described in this Section and the
attestation described in Section 13.11 or in the form required under the
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer
shall promptly forward to the Paying Agent and the Depositor any such annual
report on assessment of compliance received by the Master Servicer.
Section 13.11 Annual Independent Public Accountants' Servicing
Report. By March 15th or if such day is not a Business Day, the immediately
preceding Business Day (with no cure period), in respect of the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, of
each year, commencing in March 2007, the Master Servicer, the Special Servicer,
the Primary Servicer, the Paying Agent and the Trustee, each at its own expense,
shall cause (and each of the preceding parties, as applicable, shall (a) use
reasonable efforts to cause, by March 7th, each Servicing Function Participant
(other than a party to this Agreement) with which it has entered into a
servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans and (b) cause, by March 7th, each Servicing Function Participant
(other than a party to this Agreement) with which it has entered into a
servicing relationship after the Closing Date with respect to the Mortgage
Loans, to cause, each at its own expense) a registered public accounting firm
(which may also render other services to the Master Servicer, the Primary
Servicer, the Special Servicer, the Paying Agent, the Trustee, such Sub-Servicer
or such other Servicing Function Participant, as the case may be) that is a
member of the American Institute of Certified Public Accountants to furnish
electronically a report to the Trustee, the Paying Agent and the Depositor, with
a copy to the Rating Agencies and the Operating Adviser, to the effect that (i)
it has obtained a representation regarding certain matters from the management
of such Reporting Servicer, which includes an assessment from such Reporting
Servicer of its compliance with the Relevant Servicing Criteria, and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, it is expressing an
opinion as to whether such
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Reporting Servicer's compliance with the Relevant Servicing Criteria was fairly
stated in all material respects, or it cannot express an overall opinion
regarding such Reporting Servicer's assessment of compliance with the Relevant
Servicing Criteria. If an overall opinion cannot be expressed, such registered
public accounting firm shall state in such report why it was unable to express
such an opinion. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent or the Trustee (or
any Sub-Servicer or Servicing Function Participant with which the Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or the
Trustee has entered into a servicing relationship with respect to the Mortgage
Loans (other than a party to this Agreement)), (i) the Depositor shall have the
right to review the report and, if applicable, consult with the Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee, any
Sub-Servicer or any such Servicing Function Participant as to the nature of any
material instance of noncompliance by the Master Servicer, the Special Servicer,
the Primary Servicer, the Paying Agent, the Trustee or any such Servicing
Function Participant with the Servicing Criteria applicable to such Person, and
(ii) the Paying Agent shall confirm that each assessment submitted pursuant to
Section 13.10 is coupled with an attestation meeting the requirements of this
Section and notify the Depositor of any exceptions. The Master Servicer, the
Special Servicer, the Paying Agent, the Primary Servicer, the Trustee or any
Servicing Function Participant shall not be required to deliver, or to endeavor
to cause the delivery of, such reports until April 15 in the case of the Master
Servicer, the Special Servicer, the Paying Agent, the Primary Servicer or the
Trustee, or April 1 in the case of any Servicing Function Participant, in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding fiscal year.
Section 13.12 Indemnification. Each of the Master Servicer, the
Special Servicer, the Primary Servicer, the Trustee and the Paying Agent (each
an "Indemnifying Party") shall indemnify and hold harmless each Certification
Party and its affiliates (and, with respect only to clauses (a)(ii) and (a)(iii)
below, any comparable party in an Other Securitization), their respective
directors and officers, and each other person who controls any such entity
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (each a "Certification Indemnitee"), against any and all
expenses, losses, claims, damages and other liabilities, including without
limitation the costs of investigation, legal defense and any amounts paid in
settlement of any claim or litigation arising out of or based upon (i) an actual
breach by the Indemnifying Party of such Indemnifying Party's representations
under Section 1.02(d) of the related indemnification agreement, each dated
October 18, 2006, between the related Indemnifying Party, the Depositor and the
Underwriters, (ii) failure to perform its obligations under this Article XIII or
(iii) negligence, bad faith or willful misconduct on the part of the
Indemnifying Party in the performance of such obligations. The Master Servicer,
the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee
shall (a) use reasonable efforts to cause each Additional Servicer (other than a
party to this Agreement) with which it has entered into a servicing relationship
on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause
each Additional Servicing (other than a party to this Agreement) with which it
has entered into a servicing relationship after the Closing Date with respect to
the Mortgage Loans, to indemnify and hold harmless each Certification Party (and
any comparable party in an Other Securitization) from and against any losses,
damages, penalties, fines, forfeitures, legal
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fees and expenses and related costs, judgments and other costs and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to provide any of the annual compliance statements or annual
assessment of servicing criteria or attestation reports pursuant to this
Agreement, or the applicable sub-servicing or primary servicing agreement, as
applicable, or (ii) negligence, bad faith or willful misconduct on its part in
the performance of such obligations thereunder.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Primary Servicer and the Paying Agent, each Additional
Servicer or other Servicing Function Participant (the "Performing Party") shall
(and the Master Servicer, the Special Servicer, the Primary Servicer, the Paying
Agent and the Trustee shall (a) use reasonable efforts to cause each Additional
Servicer or other Servicing Function Participant with which it has entered into
a servicing relationship on or prior to the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement) and (b) cause each
Additional Servicing or other Servicing Function Participant with which it has
entered into a servicing relationship after the Closing Date with respect to the
Mortgage Loans (other than a party to this Agreement), to) contribute to the
amount paid or payable to the Certification Party as a result of the losses,
claims, damages or liabilities of the Certification Party in such proportion as
is appropriate to reflect the relative fault of the Certification Party on the
one hand and the Performing Party on the other in connection with a breach of
the Performing Party's obligations pursuant to this Article XIII (or breach of
its representations or obligations under the applicable sub-servicing or primary
servicing agreement to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports or otherwise comply
with the requirements of this Article XIII) or the Performing Party's
negligence, bad faith or willful misconduct in connection therewith. The Master
Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the
Trustee shall (a) use reasonable efforts to cause each Additional Servicer or
Servicing Function Participant with which it has entered into a servicing
relationship on or prior to the Closing Date with respect to the Mortgage Loans
(other than a party to this Agreement) and (b) cause each Additional Servicer or
Servicing Function Participant with which it has entered into a servicing
relationship after the Closing Date with respect to the Mortgage Loans (other
than a party to this Agreement), to agree to the foregoing indemnification and
contribution obligations.
Section 13.13 Amendments. This Article XIII may be amended by the
parties hereto pursuant to Section 14.3 (without, in each case, 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) for purposes of complying with Regulation AB and/or to conform
to standards developed within the commercial mortgage backed securities market.
Section 13.14 Exchange Act Report Signatures. Each Form 8-K
report and Form 10-D report shall be signed by the Depositor. The Depositor
shall provide its signature to the Paying Agent by electronic or fax
transmission (with hard copy to follow by overnight mail) no later than the end
of business on the 13th calendar day following the related Distribution Date for
Form 10-D, and not later than the end of business on the 3rd Business Day after
the Reportable Event for Form 8-K (provided, that in each case the Paying Agent
shall not file the related form until the Depositor has given its approval
thereof). If a Form 8-K or Form 10-D cannot be filed on time or if a previously
filed Form 8-K or Form 10-D needs to be amended, the
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Paying Agent will follow the procedures set forth in this Article XIII. The
signing party at the Depositor can be contacted at the address identified in
Section 14.5.
Section 13.15 Termination of the Paying Agent and Sub-Servicers.
(a) Each of the Master Servicer, the Special Servicer, the
Primary Servicer, the Paying Agent and the Trustee shall terminate, in
accordance with the related sub-servicing agreement, any Sub-Servicer with which
it has entered into such sub-servicing agreement, and the Master Servicer shall
terminate the Primary Servicer in accordance with the terms of the Primary
Servicing Agreement, if such Sub-Servicer or the Primary Servicer, as the case
may be, is in breach of any of its obligations under such sub-servicing
agreement or the Primary Servicing Agreement, as the case may be, whose purpose
is to facilitate compliance by the Depositor of the reporting requirements of
the Exchange Act or with the provisions of Regulation AB and the related rules
and regulations of the Commission.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Depositor may immediately terminate the Paying Agent if the
Paying Agent fails to comply with any of its obligations under this Article
XIII; provided that (a) such termination shall not be effective until a
successor paying agent shall have accepted the appointment, (b) the Paying Agent
may not be terminated due to its failure to properly prepare or file on a timely
basis any Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or
any Form 12b-25 where such failure results from the Paying Agent's inability or
failure to receive, within the exact time frames set forth in this Agreement any
information, approval, direction or signature from any other party hereto needed
to prepare, arrange for execution or file any such Form 8-K, Form 10-K or Form
10-D or any amendments to such forms or any form 12b-25 not resulting from its
own negligence, bad faith or willful misconduct and (c) if, following the Paying
Agent's failure to comply with any of such obligations under Sections 13.4,
13.5, 13.7, 13.9, 13.10 or 13.11 on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in, such Sections,
(i) the Paying Agent subsequently complies with such obligations before the
Trustee or the Depositor gives written notice to it that it is terminated in
accordance with this Section 13.15(b) and (ii) the Paying Agent's failure to
comply does not cause it to fail in its obligations to timely file the related
Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing
Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then the Depositor shall
cease to have the right to terminate the Paying Agent under this Section
13.15(b) on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 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 14.2 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
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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 14.3 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 sub-paying agents and the requirement that certain information be delivered
to such sub-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 and the Master Servicer 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) . 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 (B) adversely affect the status of
any REMIC Pool as a REMIC or the Class P Grantor Trust. Prior to entering into
any amendment without the consent of Holders pursuant to this paragraph, the
Trustee may require an Opinion of Counsel, addressed to the parties to this
Agreement, and a Nondisqualification Opinion (in 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
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paragraph (c) of this Section 14.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and/or an Opinion of Counsel that such
amendment will not result in an Adverse Grantor Trust Event, as applicable, and
an Opinion of Counsel that any amendment pursuant to this Section 14.3(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, 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 without the consent of the Holder of such
Certificate, (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 or (iv) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
(as evidenced by a Nondisqualification Opinion) without the consent of 100% of
the Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders) or the Class P Grantor Trust as a grantor trust without the
consent of 100% of the holders of the Class P Certificates; 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 14.3(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 pursuant to clauses (i), (ii) and (iii) of Section 14.3(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 14.3 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) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may not be amended in
any manner that is reasonably likely to have an adverse effect on the Primary
Servicer without first obtaining the written consent of the Primary Servicer.
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(h) Notwithstanding the fact that the provisions in Section
14.3(c) would otherwise apply, with respect to any amendment that significantly
modifies the permitted activities of the Trust, the Trustee, the Primary
Servicer, 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 14.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 14.8 herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
(j) Notwithstanding anything to the contrary contained in this
Section 14.3, the parties hereto agree that this Agreement may not be amended in
any manner materially adverse to the holder of any B Note without the prior
written consent of the holder of such B Note.
(k) Notwithstanding anything to the contrary contained in this
Section 14.3, the Depositor shall provide Principal with notice of any
amendments to this Agreement.
Section 14.4 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 14.5 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, Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage Department,
with copies to the attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director,
Legal Department; (B) in the case of the Trustee at the Corporate Trust Office;
(C) in the case of the Master Servicer, Xxxxx Fargo Bank, National Association,
00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Commercial Mortgage Servicing, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx
Fargo Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000; (D) in the case of Principal II, Principal Global Investors,
LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx,
Senior Vice President/Managing Director, with a copy to Xxxxxx X. Xxxxxxxxx,
Esq.; (E) in the case of BSCMI, Bear Xxxxxxx Commercial Mortgage, Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx,
Senior Managing Director, Commercial Mortgage Department, with copies to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department; (F)
in the case of MSMC, Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend; (G) in the case of the Special
Servicer, ARCap Servicing, Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Xxxx Xxxxx; (H) in the case of the initial Operating
Adviser, ARCap
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REIT, Inc., 0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
Xxxx Xxxxx; and (I) in the case of the Paying Agent, Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS) Bear Xxxxxxx Commercial Mortgage Securities
Inc., Series 2006-TOP24; 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 14.6 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 14.7 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 14.8 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 14.9 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 (including the Primary Servicer to the extent
applicable to the Primary Servicer) 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)(I)(ii)(B), 8.25(d) (only in the case of the
Non-Serviced Mortgage Loan Master Servicer), 9.24(d) (only in the case of the
Non-Serviced Mortgage Loan Special Servicer), and Article XIII.
Section 14.10 Special Notices to the Rating Agencies. 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 14.3
hereof;
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(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 Paying Agent, the Operating Adviser or the Trustee pursuant to
this Agreement;
(v) the appointment of any successor to the Master Servicer,
the Trustee, the Paying Agent, 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:
If to Moody's, to:
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Commercial Real Estate
Monitoring
If to Fitch, to:
Fitch Ratings
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
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:
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(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 Primary Servicer and the
Special Servicer each of the reports required to be delivered by the Master
Servicer to the Primary Servicer and the Special Servicer pursuant to the terms
of this Agreement. The Trustee, the Paying Agent 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, Paying Agent 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 14.11 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 14.12 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 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
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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 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.
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 14.13 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
-291-
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 14.14 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).
Section 14.15 Acknowledgement by Primary Servicer. The Primary
Servicer agrees, to the extent applicable to the Primary Servicer and the
Mortgage Loans serviced by the Primary Servicer, to be bound by the terms of
Sections 5.1(g), 8.3, 8.4, 8.7, 8.10, 8.18, 8.25(e), 14.3 and Article XIII of
this Agreement.
-292-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx Xx.
---------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Sr. Vice President
ARCAP SERVICING, INC., as Special Servicer
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: President and Chief Operating
Officer
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee and Custodian
By: /s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Paying Agent, Authenticating Agent and
Certificate Registrar
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
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PRINCIPAL GLOBAL INVESTORS, LLC,
acting solely in its capacity as
Primary Servicer with respect to the
sections referred to in Section
14.15 of the Agreement
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Counsel
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Second Vice President & Counsel
-294-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 26th day of October 2006, before me, a notary public in and for said
State, personally appeared Xxxxxxx X. Xxxxxx Xx., 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 Bear Xxxxxxx
Commercial Mortgage Securities 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/ Notary Public
-----------------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this 25th day of October 2006, before me, a notary public in and for said
State, personally appeared Xxxxxxx X. 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 Senior Vice President of Xxxxx Fargo Bank, National
Association, 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. Xxxxxxxx
-----------------------------------
Notary Public
-ii-
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 26th day of October 2006, before me, a notary public in and for said
State, personally appeared Xxxx Xxxxx known to me to be the President and Chief
Operating Officer of ARCap Servicing, Inc., 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 Xxxxxx
-------------------------------------
Notary Public
-iii-
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this 31st day of October 2006, before me, a notary public in and for said
State, personally appeared Xxx X. Xxxxx, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Assistant Vice President on behalf of LaSalle 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/ Xxxxx Xxxxxxxx
------------------------------------
Notary Public
-iv-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 31st day of October 2006, before me, a notary public in and for said
State, personally appeared Xxx Xxxxxxxxx, 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/ Xxxx X. Xxxx
------------------------------------
Notary Public
-v-
STATE OF )
) ss.:
COUNTY OF POLK )
On this 20th day of October 2006, before me, a notary public in and for said
State, personally appeared Xxxxx Xxxxxxx and Xxxxx X. Xxxxxxxx, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument as Counsel and Second V.P. and Counsel on
behalf of Principal Global Investors, LLC 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/ Xxxxx X. Xxxxxx
------------------------------------
Notary Public
-vi-
--------------------------------------------------------------------------------
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
ARCAP SERVICING, INC.,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE AND CUSTODIAN,
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 2006
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP24
--------------------------------------------------------------------------------
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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
INITIAL PASS-THROUGH RATE: 4.905% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
OCTOBER 1, 2006 SPECIAL SERVICER: ARCAP SERVICING, INC.
CUT-OFF DATE: OCTOBER 1, 2006 PAYING AGENT: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 INVESTORS, LLC
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATES AS OF THE CLOSING DATE: $59,200,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE CUSIP NO. 07388N AA 4
AS OF THE CLOSING DATE: $59,200,000
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE:
$173,230,000 CUSIP XX. 00000X XX 2
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE
AS OF THE CLOSING DATE: $173,230,000
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar
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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3 ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $91,660,000
CUSIP NO. 07388N AC 0
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE
AS OF THE CLOSING DATE: $91,660,000
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar
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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
MASTER SERVICER: XXXXX FARGO BANK,
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND NATIONAL ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
OCTOBER 1, 2006 PAYING AGENT: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CLOSING DATE: OCTOBER 31, 2006 INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-AB
CERTIFICATES AS OF THE CLOSING DATE: $81,000,000 CUSIP NO. 07388N AD 8
CERTIFICATE BALANCE OF THIS CLASS A-AB CERTIFICATE
AS OF THE CLOSING DATE: $81,000,000
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 the Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer, the Certificate Registrar nor any such agents
shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-4 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4 ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $
CUSIP NO. 07388N AE 6
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE
AS OF THE CLOSING DATE: $
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-M CERTIFICATE]
THIS CLASS A-M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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-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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: GMAC COMMERCIAL
OCTOBER 1, 2006 MORTGAGE CORPORATION
CUT-OFF DATE: OCTOBER 1, 2006 PAYING AGENT: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 INVESTORS, LLC
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-M TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATES AS OF THE CLOSING DATE: ASSOCIATION
$153,472,000
CUSIP NO. 07388N AF 3
CERTIFICATE BALANCE OF THIS CLASS A-M CERTIFICATE
AS OF THE CLOSING DATE: $153,472,000
No. A-M-1
CLASS A-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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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-M Certificates. The Certificates are
designated as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 Class A-M Available Funds, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 12th
day of each month or, if such 12th 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 on the basis
of the actual number of days elapsed during the related Interest Accrual Period
and a 360-day year) 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar
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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 A-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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-J ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE:
$101,676,000 CUSIP NO. 07388N AG 1
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE
AS OF THE CLOSING DATE: $101,676,000
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar
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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 B 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 B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $28,776,000
CUSIP NO. 07388N AH 9
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS
OF THE CLOSING DATE: $28,776,000 (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-9
[FORM OF CLASS C 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 C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
INITIAL PASS-THROUGH RATE: 5.983% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
OCTOBER 1, 2006 SPECIAL SERVICER: ARCAP SERVICING, INC.
CUT-OFF DATE: OCTOBER 1, 2006 PAYING AGENT: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 INVESTORS, LLC
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C TRUSTEE: LASALLE BANK NATIONAL
CERTIFICATES AS OF THE CLOSING DATE: $13,429,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS CUSIP NO. 07388N AJ 5
OF THE CLOSING DATE: $13,429,000 (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-10
[FORM OF CLASS D 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 D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $21,102,000
CUSIP NO. 07388N AK 2
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS
OF THE CLOSING DATE: $21,102,000 (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-11
[FORM OF CLASS E 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 E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $13,429,000
CUSIP NO. 07388N AL 0
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS
OF THE CLOSING DATE: $13,429,000 (SUBJECT TO
SCHEDULE OF EXCHANGES ATTACHED)
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $13,429,000
CUSIP NO. 07388N AM 8
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS
OF THE CLOSING DATE: $13,429,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $19,184,000
CUSIP NO. 07388N AN 6
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS
OF THE CLOSING DATE: $19,184,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $9,592,000
CUSIP NO. 07388N AP 1
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS
OF THE CLOSING DATE: $9,592,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $3,837,000
CUSIP NO. 07388N AQ 9
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS
OF THE CLOSING DATE: $3,837,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $3,837,000
CUSIP NO. 07388N AR 7
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS
OF THE CLOSING DATE: $3,837,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $5,755,000
CUSIP NO. 07388N AS 5
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS
OF THE CLOSING DATE: $5,755,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $5,755,000
CUSIP NO. 07388N AT 3
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS
OF THE CLOSING DATE: $5,755,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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"), Bear Xxxxxxx Commercial Mortgage Securities
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Paying
Agent, the Certificate Registrar, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Servicing 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $1,918,000
CUSIP NO. 07388N AU 0
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS
OF THE CLOSING DATE: $1,918,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $1,919,000
CUSIP NO. 07388N AV 8
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS
OF THE CLOSING DATE: $1,919,000 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING AGENT.
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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND MASTER SERVICER: XXXXX FARGO BANK,
SERVICING AGREEMENT NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SERVICING, INC.
OCTOBER 1, 2006
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
CUT-OFF DATE: OCTOBER 1, 2006 ASSOCIATION
CLOSING DATE: OCTOBER 31, 2006 PRIMARY SERVICER: PRINCIPAL GLOBAL
INVESTORS, LLC
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P ASSOCIATION
CERTIFICATES AS OF THE CLOSING DATE: $17,265,954
CUSIP NO. 07388N AW 6
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS
OF THE CLOSING DATE: $17,265,954 (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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 P 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th
day of each month or, if such 12th 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 P 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PERCENTAGE INTEREST OF THIS CLASS R-I SPECIAL SERVICER: ARCAP SERVICING, INC.
CERTIFICATE: 100%
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: AS OF ASSOCIATION
OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CUT-OFF DATE: OCTOBER 1, 2006 INVESTORS, LLC
CLOSING DATE: OCTOBER 31, 2006 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 NO. R-I-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th day of each month or, if such 12th 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 a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-23
[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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PERCENTAGE INTEREST OF THIS CLASS R-II SPECIAL SERVICER: ARCAP SERVICING, INC.
CERTIFICATE: 100%
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: AS OF ASSOCIATION
OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CUT-OFF DATE: OCTOBER 1, 2006 INVESTORS, LLC
CLOSING DATE: OCTOBER 31, 2006 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 NO. R-II-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Paying Agent, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th day of each month or, if such 12th 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 a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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
CERTIFICATE REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: ARCAP SERVICING, INC.
CERTIFICATE: 100%
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: AS OF ASSOCIATION
OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CUT-OFF DATE: OCTOBER 1, 2006 INVESTORS, LLC
CLOSING DATE: OCTOBER 31, 2006 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 NO. R-III-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear
Xxxxxxx Commercial Mortgage Securities Inc. (hereinafter called the "Depositor",
which term includes any successor entity under the Pooling and Servicing
Agreement), the Trustee, the Paying Agent, 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 Bear Xxxxxxx Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th day of each month or, if such 12th 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 a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar 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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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 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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING MASTER SERVICER: XXXXX FARGO BANK,
AND SERVICING AGREEMENT NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-1 SPECIAL SERVICER: ARCAP SERVICING, INC.
CERTIFICATE: $
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: AS OF ASSOCIATION
OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CUT-OFF DATE: OCTOBER 1, 2006 INVESTORS, LLC
CLOSING DATE: OCTOBER 31, 2006 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 CUSIP NO. 07388N AX 4
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-1
CERTIFICATES AS OF THE CLOSING DATE: $ 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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th day of each month
or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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-26
[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 CERTIFICATE
REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
PRIMARY 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 PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR 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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
PASS-THROUGH RATE: VARIABLE PER THE POOLING MASTER SERVICER: XXXXX FARGO BANK,
AND SERVICING AGREEMENT NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS X-2 SPECIAL SERVICER: ARCAP SERVICING, INC.
CERTIFICATE: $
PAYING AGENT: XXXXX FARGO BANK, NATIONAL
DATE OF POOLING AND SERVICING AGREEMENT: AS OF ASSOCIATION
OCTOBER 1, 2006
PRIMARY SERVICER: PRINCIPAL GLOBAL
CUT-OFF DATE: OCTOBER 1, 2006 INVESTORS, LLC
CLOSING DATE: OCTOBER 31, 2006 TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: NOVEMBER 13, 2006 CUSIP NO. 07388N AY 2
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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES 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 Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Paying Agent, the Certificate Registrar, 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 Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 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 and the
Paying Agent. 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 12th day of each month
or, if such 12th 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 Paying Agent 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 Paying Agent 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 Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
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 Certificate Registrar 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 Paying Agent, the Master
Servicer, the Special Servicer and the Certificate Registrar 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
Paying Agent, the Master Servicer, the Special Servicer, the Certificate
Registrar nor any such agents shall be affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent 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 Certificate Registrar 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 Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By: ___________________________________
AUTHORIZED SIGNATORY
Dated: OCTOBER 31, 2006
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 entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as Act..........................
tenants in 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
October __, 2006
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Principal Commercial Funding
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP24
---------------------------------------------------------------
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, and the REMIC II 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.
LaSalle Bank National Association, as
Trustee and Custodian
By: ________________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 2006
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Principal Commercial Funding
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Principal Global Investors II, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP24
---------------------------------------------------------------
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, and the REMIC II 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.
LaSalle Bank National Association, as
Trustee and Custodian
By: ________________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee and Custodian
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP24
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24
-----------------------------------------------------
DATE:__________
In connection with the administration of the Mortgage Loans held
by you as Trustee under the Pooling and Servicing Agreement dated as of October
1, 2006 by and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, ARCap
Servicing, Inc., as Special Servicer, Lasalle Bank National Association, as
Trustee and Custodian and Xxxxx Fargo Bank, National Association, as Paying
Agent, Custodian, Certificate Registrar and Authenticating Agent (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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 October ___, 2006 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October 1, 2006,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, LaSalle Bank National Association, as
Trustee and Custodian and Xxxxx Fargo Bank, National Association, as paying
agent (in such capacity, the "Paying Agent"). 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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 October ___, 2006 (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 October 1, 2006 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, National Association, as master servicer, ARCap Servicing,
Inc., as special servicer, LaSalle Bank National Association, as Trustee and
Custodian and Xxxxx Fargo Bank, National Association, as paying agent (in such
capacity, the "Paying Agent"). 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 October 20, 1996 which are eligible to elect to
be treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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.
___ ___ Will the Transferee be purchasing the
Transferred Certificates
only for the Transferee's own account
Yes No
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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 October ___, 2006 (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 October 1, 2006,
Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, LaSalle Bank National Association, as
Trustee and Custodian and Xxxxx Fargo Bank, National Association, as paying
agent (the "Paying Agent"). 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, Class E, Class F or Class G
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 October 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent 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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 October ___, 2006 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2006, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
ARCap Servicing, Inc., as special servicer, LaSalle Bank National Association,
as Trustee and Custodian and Xxxxx Fargo Bank, National Association, as paying
agent (in such capacity, the "Paying Agent"). 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 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, Class E, Class F and Class G
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 October 20, 1996 which are eligible to elect to be treated as U.S.
Persons).
The Depositor, the Trustee and the Paying Agent 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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 October ___, 2006 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2006, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
ARCap Servicing, Inc., as special servicer, LaSalle Bank National Association,
as Trustee and Custodian and Xxxxx Fargo Bank, National Association, as paying
agent (in such capacity, the "Paying Agent"). 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 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, Class E, Class F and Class G
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 October 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
The Depositor, the Trustee and the Paying Agent 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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 Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24, Class [R-I] [R-II] [R-III], 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: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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] 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 October 1, 2006 (the "Pooling and
Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as depositor, Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, LaSalle Bank National Association, as
Trustee and Custodian and Xxxxx Fargo Bank, National Association, as Paying
Agent, Certificate Regisgtrar and Authenticating Agent. 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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24, 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: __________, 2006
By: _____________________________
As, or as agent for, the
beneficial owner(s) of the
Certificates to which this
certificate relates.
EXHIBIT 10.1
EXHIBIT G-1
FORM OF PRIMARY SERVICING AGREEMENT
(PRINCIPAL)
----------------------------------
PRIMARY SERVICING AGREEMENT
Dated as of October 1, 2006
----------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
PRINCIPAL GLOBAL INVESTORS, LLC,
as Primary Servicer,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
between
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
ARCAP SERVICING, INC.
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION
as Trustee and Custodian
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Paying Agent, Certificate Registrar and Authenticating Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP24
ARTICLE I. DEFINITIONS.........................................................1
ARTICLE II. PRIMARY SERVICING..................................................8
SECTION 2.1 PRIMARY SERVICING.............................................8
SECTION 2.2 STANDARD OF CARE.............................................15
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY
SERVICER.....................................................16
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES..............17
ARTICLE III. DOCUMENTS AND OTHER MATTERS......................................17
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS.......................17
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN
INFORMATION..................................................17
ARTICLE IV. MASTER SERVICER ASSISTANCE........................................17
SECTION 4.1 MASTER SERVICER ASSISTANCE...................................17
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS............................18
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS..............................18
SECTION 5.1 NOTICE OF LITIGATION.........................................18
SECTION 5.2 NO PERSONAL SOLICITATION.....................................19
SECTION 5.3 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY.......................................................19
SECTION 5.4 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND
RELATED INFORMATION..........................................19
SECTION 5.5 NO ADVANCING.................................................20
SECTION 5.6 REMIC COMPLIANCE.............................................20
SECTION 5.7 INSPECTION RIGHTS............................................20
SECTION 5.8 AUTHORIZED OFFICER...........................................20
SECTION 5.9 ADDITIONAL REPORTS...........................................20
SECTION 5.10 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES..................20
SECTION 5.11 CONSENTS.....................................................21
SECTION 5.12 QUARTERLY SERVICING ACCOUNTS RECONCILIATION
CERTIFICATION................................................21
SECTION 5.13 EXCHANGE ACT REPORTS; ANNUAL COMPLIANCE DOCUMENTS............22
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS................................26
SECTION 6.1 PRIMARY SERVICER DEFAULT.....................................26
SECTION 6.2 TERMINATION..................................................29
SECTION 6.3 POST-TERMINATION OBLIGATIONS.................................29
SECTION 6.4 ADDITIONAL TERMINATION.......................................30
ARTICLE VII. SUBCONTRACTORS...................................................31
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER
SERVICER....................................................31
ARTICLE IX. INDEMNIFICATION...................................................31
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY.................................31
SECTION 9.2 MASTER SERVICER'S INDEMNITY..................................32
ARTICLE X. MISCELLANEOUS......................................................32
SECTION 10.1 SEVERABILITY.................................................32
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS...................................33
SECTION 10.3 HEADINGS.....................................................33
SECTION 10.4 CONSTRUCTION.................................................33
SECTION 10.5 ASSIGNMENT...................................................33
SECTION 10.6 PRIOR UNDERSTANDINGS.........................................34
SECTION 10.7 INTEGRATED AGREEMENT.........................................35
SECTION 10.8 COUNTERPARTS.................................................35
SECTION 10.9 GOVERNING LAWS...............................................35
SECTION 10.10 NOTICES......................................................35
SECTION 10.11 AMENDMENT....................................................35
SECTION 10.12 OTHER........................................................36
SECTION 10.13 BENEFITS OF AGREEMENT........................................36
This PRIMARY SERVICING AGREEMENT, dated and effective as of October
1, 2006, by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the capacity of
primary servicer, the "Primary Servicer") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, acting solely in its capacity as
Master Servicer under the Pooling and Servicing Agreement (as defined below)
(the "Master Servicer").
WHEREAS, Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as master
servicer, ARCap Servicing, Inc., as special servicer, Xxxxx Fargo Bank, National
Association, as paying agent, certificate registrar and authenticating agent,
and LaSalle Bank National Association, as trustee and custodian, have entered
into a Pooling and Servicing Agreement, dated as of October 1, 2006, relating to
the Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24 (as
amended, from time to time, the "Pooling and Servicing Agreement"), a copy of
which is attached hereto as Exhibit A; and
WHEREAS, the Master Servicer desires that the Primary Servicer act
as Primary Servicer with respect to the mortgage loans listed on Schedule I
hereto and provide, on behalf of the Master Servicer, the necessary servicing of
such mortgage loans performed in a manner consistent with the Servicing Standard
and in a manner consistent with this Agreement and the Pooling and Servicing
Agreement from the Closing Date until this Agreement is terminated in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings set forth below. Capitalized terms used and not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement,
provided, however, that terms whose meanings are ascribed in the Pooling and
Servicing Agreement and by the provisions thereof pertain to one or more
mortgage loans that are the subject of the Pooling and Servicing Agreement shall
be construed for purposes of this Agreement to pertain to the related Mortgage
Loan(s) that are the subject of this Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan,
the related co-lender agreement, by and between the holder of the related
Mortgage Loan and the holder of the related B Note(s), setting forth the
relative rights of such holders, as the same may be further amended from time to
time in accordance with the terms thereof.
"A/B Mortgage Loan": Any Mortgage Loan serviced under this Agreement
that is divided into a senior mortgage note and a subordinated mortgage note,
which senior mortgage note is included in the Trust. There are no A/B Mortgage
Loans relating to this Agreement.
"ABS Issuing Entity": Each trust or entity that has issued
asset-backed securities that directly or indirectly evidence interests in or are
secured by a pledge of one or more mortgage loans serviced hereunder (regardless
of whether such mortgage loan constitutes a "Mortgage Loan" under the other
provisions of this Agreement), it being understood that the TOP24 Trust
constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": The Primary Servicing Fee and the Excess
Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended
and supplemented from time to time, including all exhibits, schedules and
addenda hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and
annual financial statements and rent rolls collected with respect to the
Mortgaged Properties securing the Mortgage Loans and A/B Mortgage Loans, to be
made available, within 30 days following receipt thereof by the Primary
Servicer, to the Master Servicer (and, with respect to an A/B Mortgage Loan, the
holder of the B Note, if required by the applicable A/B Intercreditor
Agreement), the Operating Adviser, and, to any of the following Persons upon
written notification from Master Servicer of a request for such information and
the identity and address of the requesting Person requesting: the Rating
Agencies, the Special Servicer, or the Trustee.
"Applicable Depositor": The Depositor or the depositor with respect
to an ABS Issuing Entity other than the TOP24 Trust.
"B Note": With respect to any A/B Mortgage Loan, any 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
A/B Intercreditor Agreement. There are no B Notes relating to this Agreement.
"Category 1 Consent Aspect": A condition, term or provision of a
Category 1 Request that requires, or specifies a standard of, consent, or
approval of the applicable mortgagee under the Loan Documents, but shall
explicitly exclude any such conditions, terms or provisions enumerated in (a) an
escrow or reserve agreement for disbursements made from an escrow or reserve
account or an extension of time to complete repairs, replacements or
improvements in accordance with the terms and conditions set forth in Exhibit
B-2(c); (b) an assignment and assumption request covered under Section
A.1.(c)(ii) of Exhibit B-2(c) of this Agreement; (c) an additional lien,
monetary encumbrance or mezzanine financing request covered under Section
A.1.(c)(iii) of Exhibit B-2(c) of this Agreement; or (d) a defeasance request
covered under Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
"Category 1 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 2 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 3 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"CMSA Comparative Financial Status Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
W.
"CMSA Delinquent Loan Status Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Financial File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit W.
"CMSA Historical Liquidation Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit X.
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"CMSA Historical Loan Modification Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
X.
"CMSA Investor Reporting Package": The Commercial Mortgage
Securities Association Investor Reporting Package, certain forms of which are
attached to the Pooling and Servicing Agreement as Exhibits W and X and elements
of which shall be produced as provided in Section 2.1(c) and the Task
Description.
"CMSA Loan Level Reserve/LOC Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Periodic Update File": A report which is one element of
the CMSA Investor Reporting Package and the form of which is attached to the
Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Setup File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit X.
"CMSA Property File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit W.
"CMSA Quarterly Financial File": A report which is one element of
the CMSA Investor Reporting Package and the form of which is substantially
similar to the form attached to the Pooling and Servicing Agreement as Exhibit
W.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W the
contents of which are set forth in Section 8.11(h) of the Pooling and Servicing
Agreement.
"Day One Report": With respect to each Mortgage Loan and A/B
Mortgage Loan, a statement in the form of Exhibit B-1(f) setting forth the
scheduled payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan or A/B Mortgage Loan and on account of what type of payment such
amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan, a
Category 2 Request shall, for purposes of this Agreement, be deemed to be a
Category 1 Request and shall be processed, as such, by the Primary Servicer.
"Distribution Date": With respect to the TOP24 Trust, as defined in
the Pooling and Servicing Agreement. With respect to any other ABS Issuing
Entity (as the context requires), the monthly date on which distributions are
made on the related certificates under the related pooling and servicing
agreement.
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"Escrow Status Report": A brief statement to be delivered to the
Persons designated in Section 5.1(g) of the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the holder of the B Note, if required by
the applicable A/B Intercreditor Agreement, within twenty (20) days following
the first anniversary of the Closing Date, for each of the Mortgage Loans
included on Schedule VII of the Pooling and Servicing Agreement (and related B
Notes), about the status of the work or project based upon the most recent
information provided by the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each Mortgage
Loan, the portion of the related Excess Servicing Fee Rate applicable to such
month (determined in the same manner as the applicable Mortgage Rate determined
for such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and only
from collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect
to each Mortgage Loan.
"Lease": A lease, proposed lease, or amendment, modification,
restatement, extension or termination of a lease, in each case of space and any
other ancillary and associated rights in a building or on the real estate
constituting all or a portion of a Mortgaged Property.
"Loan Documents": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Servicing Proposal) to the PCFII Servicing Rights Purchase Agreement
to the effect that, except as disclosed to the Master Servicer, no Mortgage Loan
under such agreement has terms under which it may be paid off, in whole or in
part, on a date other than a due date or maturity date (including during open
periods) without payment of a full month of interest.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents
contained in the Mortgage File for the Mortgage Loans and any A/B Mortgage
Loans.
"Materiality Determination": With respect to a Category 1 Request,
the determination by Primary Servicer, exercised in good faith using the
"Servicing Standard" set forth in the Pooling and Servicing Agreement, whether a
Category 1 Consent Aspect is material and should be referred to the Special
Servicer for consent in accordance with this Agreement and the Pooling and
Servicing Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the schedule attached to
this Agreement as Schedule I, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to Section
2.1 or Section 2.3 of the Pooling and Servicing Agreement, and Mortgage Loan
shall also include any Defeasance Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President,
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Senior Vice President, Vice President or Assistant Vice President or an employee
designated as a Servicing Officer pursuant to this Agreement.
"Operating Statement Analysis": A report which is one element of the
MBA/CMSA Methodology for Analyzing and Reporting Property Income Statements,
which is part of the CMSA Investor Reporting Package and the form of which is
attached to the Pooling and Servicing Agreement as Exhibit W.
"Payment and Collection Description": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans and the A/B Mortgage Loans, as more particularly
described in Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be
submitted by Primary Servicer to the Master Servicer with respect to reporting
about collection and remittance of payments, delinquencies, status of real
estate taxes, status of insurance and status of UCC financing statements for the
Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of the B
Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"PCFII Servicing Rights Purchase Agreement": The servicing rights
purchase agreement dated October 18, 2006 between Principal Commercial Funding
II, LLC, as Seller and the Master Servicer, as Purchaser.
"POA Notice": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Pooling and Servicing Agreement": As defined in the preamble to
this Agreement.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not become
Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on which a
Servicing Transfer Event has occurred, which obligations are more particularly
described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Global Investors, LLC, as Primary Servicer
for Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As
defined in Section 5.3(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.3(a)
hereof.
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"Primary Servicer Form 8-K Information Report": As defined in
Section 5.13(c)(i) hereof.
"Primary Servicer Form 10-D Information Report": As defined in
Section 5.13(c)(ii) hereof.
"Primary Servicer Form 10-K Information Report": As defined in
Section 5.13(c)(iii) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and A/B Mortgage Loans and
(b) all other servicing documents and records in possession of Primary Servicer
that relate to or are used for the servicing of the Mortgage Loans and A/B
Mortgage Loans and that are not required to be part of the applicable Mortgage
File.
"Primary Servicing Fee": For each calendar month, as to each
Mortgage Loan and each B Note, the portion of the Primary Servicing Fee Rate
applicable to such month (determined in the same manner as the applicable
Mortgage Rate is determined for such Mortgage Loan for such month) multiplied by
the Scheduled Principal Balance of such Mortgage Loan (or the Principal Balance
in the case of each B Note) immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and only
from collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with respect
to each Mortgage Loan.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and A/B Mortgage Loans whose name and specimen signature
appear on a list of servicing officers or employees furnished to the Master
Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2
hereof.
"Property Inspection Description": The description of the
obligations of the Primary Servicer with respect to inspection of the Mortgaged
Properties for each of the Mortgage Loans and the A/B Mortgage Loans as more
particularly described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.12
hereof.
"Regulations": The rules, regulations and policy statements of
the SEC as in effect from time to time.
"Requirements List": As defined in the Post Closing Matters
Description in Exhibit B-2.
"SEC": The Securities and Exchange Commission.
"Services": Those activities to be provided by the Primary
Servicer for the Servicing of the Mortgage Loans and the A/B Mortgage Loans
pursuant to the provisions of this Agreement.
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"Servicing": With respect to any Mortgage Loan and any A/B Mortgage
Loan, the right and obligation of the Primary Servicer to administer such
Mortgage Loan and any A/B Mortgage Loan in accordance with the provisions
hereof.
"Servicing Documents": The Master Servicer Servicing Documents
and Primary Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, the
Primary Servicer shall service and administer the Mortgage Loans and the A/B
Mortgage Loans that it is obligated to service and administer pursuant to this
Agreement on behalf of the Master Servicer and in the best interests of and for
the benefit of the Certificateholders and, with respect to each B Note, the
holder(s) of each such B Note (as determined by the Primary Servicer in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and A/B Mortgage
Loans and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual
in its general mortgage servicing and REO property management activities on
behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and REO properties that are comparable to those for
which it is responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments
of principal and interest under the Mortgage Loans and A/B Mortgage Loans;
and without regard to: (I) any other relationship that the Primary
Servicer, or any Affiliate thereof, may have with the related Mortgagor; (II)
the ownership of any Certificate or B Note by the Primary Servicer, or any
Affiliate thereof; (III) the Master Servicer's obligation to make Advances; and
(IV) the right of the Primary Servicer (or any Affiliate thereof) to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; provided, however, that
in no event shall the foregoing standards be less than the applicable provisions
of the Servicing Standard set forth in the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the servicing standards set forth in the
related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or
proposed to cover more than the greater of either (a) 20,000 net rentable square
feet or (b) twenty percent (20%) of the net rentable square footage of the
Mortgaged Property.
"Significant Obligor": A "significant obligor" within the meaning of
Item 1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement
with respect to a Lease on a form customarily used by Primary Servicer with
respect to Mortgaged Properties of similar type and consistent with the
Servicing Standard.
"Special Servicer": ARCap Servicing, Inc. or any successor
thereto as special servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Master
Servicer upon the termination of the Primary Servicer resulting from any Primary
Servicer Default, if any, who shall thereafter perform the Services with respect
to the Mortgage Loans and the A/B Mortgage Loans; provided, that the Master
Servicer shall perform all Services with respect to the Mortgage Loans and the
A/B Mortgage Loans until such Person, if any, is selected.
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"Task Description": The outline description of the obligations of
the Primary Servicer and Master Servicer with respect to the Mortgage Loans and
the A/B Mortgage Loans as set forth in Exhibit B-4 attached to this Agreement.
"TOP24 Trust": The trust established under the Pooling and Servicing
Agreement.
"Trustee": LaSalle Bank National Association or any successor
thereto as trustee under the Pooling and Servicing Agreement.
ARTICLE II.
PRIMARY SERVICING
Section 2.1 Primary Servicing From the Closing Date until the
Primary Servicing Termination Date, Master Servicer hereby authorizes and
directs Primary Servicer to service each Mortgage Loan and each A/B Mortgage
Loan as primary servicer on behalf of and at the direction of the Master
Servicer as provided in this Agreement. The Services shall consist of the
following:
(a) Primary Servicer shall perform all tasks and
responsibilities necessary to meet the requirements under the Task
Description, the Post Closing Matters Description, the Payment and
Collection Description and the Payment and Mortgage Loan Status Reports,
in each case in accordance with the terms of this Agreement and, with
respect to each B Note, the terms of the related A/B Intercreditor
Agreement, and in a manner not inconsistent with the Pooling and Servicing
Agreement. Primary Servicer shall also perform the obligations to which it
has expressly agreed under the Pooling and Servicing Agreement and the
Master Servicer's obligations set forth in Sections 2.1(c), 2.1(d), that
portion of 5.1(g) relating to the Escrow Status Report, 8.11(i), if
applicable, and 8.14 of the Pooling and Servicing Agreement relating to
Annual Statement and Rent Roll Reporting with respect to the Mortgage
Loans and the A/B Mortgage Loans.
(b) Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and
the general allocation of responsibility of servicing obligations between
the Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description.
(c) Without limiting the foregoing, Primary Servicer shall
collect and remit payments on the Mortgage Loans and the A/B Mortgage
Loans in accordance with the Payment and Collection Description. For the
purposes of this Agreement, the "Payment and Collection Description" shall
encompass all of the following responsibilities and obligations set forth
in the following subsections (i) through (viii) and subsection (xii):
(i) On or prior to the Closing Date, the Primary Servicer
shall establish a Primary Servicer Collection Account, and give the
Master Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained and the account number of the Primary Servicer
Collection Account. Primary Servicer may direct the investment of
funds on deposit in the Primary Servicer Collection Account subject
to and in accordance with the criteria
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and requirements set forth in the applicable A/B Intercreditor
Agreement, as they relate to a particular B Note and those set forth
in the Pooling and Servicing Agreement relating to the Collection
Account established thereunder (construed as if the Primary Servicer
Collection Account were such Collection Account), including without
limitation the obligation, if any, to deposit into such account the
amount of any investment losses to the extent required in the
Pooling and Servicing Agreement and, with respect to each B Note,
the terms of the related A/B Intercreditor Agreement.
(ii) The Primary Servicer shall make efforts consistent with
the Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans and the A/B Mortgage Loans (except for
payments due on or prior to the Cut-Off Date), as well as any
required Principal Prepayments, Prepayment Premiums, late charges,
Insurance Proceeds, Condemnation Proceeds and any and all other
amounts due from the Mortgagor or a third party with respect to the
Mortgage Loans pursuant to the Loan Documents; provided, however,
that with respect to any payments that are required under the terms
of the applicable loan documents to be made directly to a Person
other than the holder of the related Mortgage Loan, the Primary
Servicer shall use efforts consistent with the Servicing Standard to
cause such payments to be made.
(iii) The Primary Servicer shall deposit all such payments
received with respect to each A/B Mortgage Loan and each Mortgage
Loan (less any related Aggregate Servicing Fee and any other
payments due to Primary Servicer under this Agreement with respect
to such Mortgage Loan) into the Primary Servicer Collection Account
on or before the next Business Day after receiving each such
payment. With respect to funds deposited into the Primary Servicer
Collection Account for each A/B Mortgage Loan, on or before the end
of the third Business Day after the Primary Servicer receives such
funds the Primary Servicer shall determine, in accordance with the
provisions of the applicable A/B Intercreditor Agreement, the amount
(if any) of such funds required to be paid to the holder of the
related B Note (less any primary servicing fee or other fee, if any,
agreed to be paid by the holder of such B Note to the Primary
Servicer pursuant to the applicable A/B Intercreditor Agreement or
other agreement between the Primary Servicer and such B Note holder,
together with any other payments related to such B Note, which are
payable to the Primary Servicer). Such amounts shall be paid to each
holder of a B Note, at the times and in the manner required pursuant
to the provisions of the applicable A/B Intercreditor Agreement.
(iv) Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the
B Note, the Primary Servicer shall remit to the Master Servicer from
the Primary Servicer Collection Account, by wire transfer of
immediately available funds, all funds in such account (other than
income and earnings on such account), and shall not withdraw funds
therefrom for any other purpose, except to withdraw amounts required
to be paid to the holder of the B Note and any other amounts
deposited therein by error, as follows: (1) in the case of any
payments received and collected during a Collection Period on or
before the Determination Date for such Collection Period, Primary
Servicer shall remit such payments on such Determination Date; and
(2) in the case of any payments received and collected by Primary
Servicer after the Determination Date for such Collection Period,
Primary Servicer shall remit all such payments on the first Business
Day following receipt of the amount of any such payments; provided,
however, that notwithstanding any contrary provision of clause (1)
or clause (2) all of the following provisions shall apply:
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(1) in the case of any payment received on a
Determination Date for a Collection Period, Primary Servicer
shall (i) provide Master Servicer with immediate notice of
Primary Servicer's receipt of such payment and (ii) shall use
its reasonable best efforts to remit such payment to Master
Servicer on the date of receipt and in any event shall remit
such payment to Master Servicer within one Business Day
following receipt (and Primary Servicer shall in any event
provide Master Servicer with immediate notice of Primary
Servicer becoming aware that any Principal Prepayment is to be
made on a Determination Date);
(2) any Scheduled Payment due during a Collection Period
but received after the end of such Collection Period shall be
remitted by Primary Servicer within one Business Day following
Primary Servicer's receipt of such Scheduled Payment;
(3) Primary Servicer shall use its reasonable best
efforts to remit to Master Servicer on the date of receipt of,
and in any event shall remit to Master Servicer within one
Business Day following receipt of, any unscheduled payments or
Balloon Payments that would result in a Prepayment Interest
Shortfall; and
(4) any Scheduled Payment received and collected during
a Collection Period, but due on a Due Date occurring after the
end of such Collection Period, shall be remitted on the
Determination Date for the Collection Period in which such Due
Date occurs.
(v) In the event any payments received by Primary Servicer
becomes NSF after the monies associated with that payment have been
remitted to the Master Servicer, the Master Servicer will return
such moneys to Primary Servicer by wire transfer in immediately
available funds within one Business Day of notice from the Primary
Servicer. If the Primary Servicer fails to remit to the Master
Servicer when due the total pool remittance required to be remitted
under this Agreement (whether or not such failure constitutes a
Primary Servicer Default), then interest shall accrue on the amount
of the total pool remittance and the Primary Servicer shall promptly
pay such interest to the Master Servicer, at a per annum rate equal
to the Advance Rate from and including the date when such remittance
was required to be made to but excluding the day when such
remittance is actually made. If the Primary Servicer fails to remit
a single loan remittance more than five (5) days after the single
loan remittance was received by the Primary Servicer, then interest
shall accrue on the amount of such single loan remittance and the
Primary Servicer shall promptly pay such interest to the Master
Servicer, at a per annum rate equal to the Advance Rate from and
including the date when such remittance was required to be made to
but excluding the date when such remittance is actually made.
(vi) With respect to escrow or reserve payments as listed on
the Task Description, the Primary Servicer shall collect escrow or
reserve amounts with respect to the Mortgage Loans and A/B Mortgage
Loans, and shall deposit such funds in an escrow account, which
shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real
estate taxes, insurance and reserves, and escrows for repairs,
replacements, principal and interest payments and lease payments and
any other matters specified in any agreement in which funds are held
at the time, and in the manner and for the purposes as otherwise
required or delineated in the Loan Documents and with respect to the
Master Servicer under the Pooling and Servicing
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Agreement. The Primary Servicer may direct the investment of such
funds subject to and in accordance with the criteria and
requirements set forth in the Pooling and Servicing Agreement
relating to Escrow Accounts, including without limitation the
obligation to deposit into the Escrow Account the amount of any
investment losses to the extent required in the Pooling and
Servicing Agreement. Primary Servicer shall have the benefit and
shall retain all interest and income earned on the Escrow Accounts
for the Mortgage Loans and A/B Mortgage Loans that is not paid to
Mortgagors.
(vii) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments
received on Mortgage Loans and A/B Mortgage Loans; (2) a delinquency
report; (3) a real estate tax delinquency report which may be based
upon information provided by Primary Servicer's real estate tax
service (if any) if engaged in accordance with Article VII of this
Agreement; (4) an insurance monitoring report; (5) a UCC form
monitoring report; and (6) the Day One Report. Primary Servicer
shall submit the Payment and Mortgage Loan Status Report described
by clause (1) above by electronic mail on each day that payments or
funds are remitted to the Master Servicer pursuant to Section 2.1(c)
of this Agreement. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report described by clause (2) above by
electronic mail, monthly no later than the tenth (10th) day of each
month for the previous month. Primary Servicer shall submit the
Payment and Mortgage Loan Status Reports described by clauses (3),
(4) and (5) above by electronic mail, quarterly no later than
January 15, April 15, July 15 and October 15 for the previous above
quarter. Primary Servicer shall submit the Payment and Mortgage Loan
Status Report described by clause (6) above by electronic mail,
monthly no later than the first (1st) day of each month in which the
applicable Distribution Date occurs for the then current Collection
Period. If the day on which any Payment and Mortgage Loan Status
Report is otherwise due as described above does not constitute a
Business Day, then such report shall be due on the immediately
succeeding Business Day.
(viii) Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package
for the Mortgage Loans and the A/B Mortgage Loans as follows:
(1) Master Servicer shall complete all fields and
aspects of the CMSA Loan Setup File that are available from
the Final Prospectus Supplement. Upon completing all of such
fields, Master Servicer shall forward the CMSA Loan Setup File
for the Mortgage Loans and the A/B Mortgage Loans to Primary
Servicer who shall complete the fields and aspects of the CMSA
Loan Setup File for the Mortgage Loans and the A/B Mortgage
Loans that are not available from the Final Prospectus
Supplement and return to Master Servicer the completed CMSA
Loan Setup File for the Mortgage Loans and the A/B Mortgage
Loans within five (5) Business Days of receiving such file
from Master Servicer. Master Servicer shall deliver a CMSA
Loan Setup File to Primary Servicer (a) for the Mortgage Loans
and the A/B Mortgage Loans only; (b) in electronic form; (c)
using an Excel file; and (d) with all fields in the same order
as the CMSA Loan Setup File. Primary Servicer and Master
Servicer acknowledge that delivery of the CMSA Loan Setup File
is to commence with the Report Date in November 2006.
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(2) Commencing in the applicable "Month of Initial
Report" set forth opposite each report described below, the
Primary Servicer shall complete such report at the frequency
set forth opposite such report below and deliver such report
to the Master Servicer at or before the time described
opposite such report below (and with respect to an A/B
Mortgage Loan, deliver any additional reports to the holder of
the related B Note which may be required to be delivered to
the holder of such B Note, at such times as may be required
pursuant to the applicable A/B Intercreditor Agreement):
Month of Frequency Time of Required
Description of Initial of Delivery to the
Report Report Report Master Servicer
------------------ ------------- ---------- -----------------------------
CMSA Property File December 2006 Monthly 10th Business Day for prior
month but in no event later
than the Business Day prior
to the Report Date in such
month.
Operating June 2007 for Annually With respect to each
Statement Analysis year-end 2006 calendar year, beginning in
Report, CMSA 2007 for year-end 2006, the
Financial File and earlier of (i) 30 days after
NOI Adjustment receipt of the underlying
Worksheet operating statements from
the borrower or (ii) June 1.
CMSA Loan Level December 2006 Monthly 10th Business Day for prior
Reserve/LOC Report month but in no event later
than the Business Day prior
to the Report Date in such
month.
CMSA Servicer December 2006 Monthly 10th Business Day for prior
Watch List month but in no event later
than the Business Day prior
to the Report Date in such
month.
CMSA Comparative December 2006 Monthly 10th Business Day for prior
Financial Status month but in no event later
Report than the Business Day prior
to the Report Date in such
month.
Quarterly July 2007 Quarterly, With respect to a
Operating but with calendar quarter, within 95
Statement Analysis respect to days following the end of
Report and CMSA only the such calendar quarter
Quarterly first (commencing with the quarter
Financial File three ending on March 31, 2007).
calendar
quarters
in each
year
(3) The Master Servicer shall have the responsibility to
complete and deliver the following reports in accordance with
the Pooling and Servicing Agreement: CMSA Loan Setup File,
CMSA Loan Periodic Update File; CMSA Delinquent Loan Status
Report; CMSA REO Status Report; CMSA Historical Loan
Modification Report and CMSA Historical Liquidation Report.
(4) Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Master Servicer
specific information or data in Primary Servicer's possession
and necessary to complete a report for which Master
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Servicer is responsible, upon the written request of Master
Servicer; and (b) the Master Servicer shall reasonably
cooperate to provide to the Primary Servicer specific
information or data in the Master Servicer's possession, as
may be requested in writing by the Primary Servicer, to enable
the Primary Servicer to prepare and deliver to each holder of
a B Note any reports or notices required to be delivered to
each such holder of a B Note, pursuant to the provisions of
the applicable A/B Intercreditor Agreement.
(5) Notwithstanding the definitions of various CMSA
reports in this Agreement that directly link such reports to a
form attached as part of Exhibit W and Exhibit X to the
Pooling and Servicing Agreement, Master Servicer shall be
entitled to amend the forms of such reports that Primary
Servicer must deliver under this Agreement, provided that (a)
the Commercial Mortgage Securities Association has amended the
applicable reports and published such amendments as its
revised form on its website; (b) Master Servicer gives Primary
Servicer no less than one hundred twenty (120) days notice of
any required amendments or revisions to a report prior to
their becoming effective as the form of report to deliver
under this Agreement; and (c) any such amendments or revisions
(either singly or in the aggregate) shall not impose undue
additional burden or costs upon Primary Servicer to collect,
format, calculate or report information to Master Servicer.
(6) All Operating Statement Analysis Reports, NOI
Adjustment Worksheets, financial statements, rent rolls, and
budgets delivered by the Primary Servicer to the Master
Servicer pursuant hereto shall be labeled according to the
ARCap Naming Convention for Electronic File Delivery.
(ix) Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection
Description and Payment and Mortgage Loan Status Reports. In the
event of any conflict between (1) the Task Description and (2) the
Payment and Collection Description and Payment and Mortgage Loan
Status Reports, then the Payment and Collection Description and
Payment and Mortgage Loan Status Reports shall govern.
(x) The Primary Servicer shall be responsible for the
calculation of any and all Prepayment Premiums payable under each
Mortgage Loan and each A/B Mortgage Loan.
(xi) Within thirty (30) days following the Closing Date,
Primary Servicer shall deliver to Master Servicer a report listing
the tax parcels coinciding with the Mortgaged Properties.
(xii) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan, which are
payable to the holder of the applicable B Note pursuant to the
provisions of the applicable Intercreditor Agreement, shall be paid
by the Primary Servicer to such B Note holder no later than three
Business Days after collection of such funds. In the event that the
Primary Servicer determines (in its sole discretion) that in order
to confirm the amount to be disbursed to a B Note holder pursuant to
the provisions of the A/B Intercreditor Agreement, the Primary
Servicer requires information from the Master Servicer, the Primary
Servicer shall have the right, within three Business Days after
collection of the funds at issue, to deliver to the Master Servicer
a written request for such information. The Master Servicer shall
provide the
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information requested, to the extent that such information is in the
possession of the Master Servicer or involves a calculation to be
made by the Master Servicer on the basis of information in the
possession of the Master Servicer, no later than three Business Days
after the Master Servicer receives the Primary Servicer's written
request, and the Primary Servicer shall make the disbursement at
issue to the B Note holder no later than three Business Days after
it receives the information from the Master Servicer needed to
confirm the disbursement at issue. In the event that the Master
Servicer determines (in its sole discretion) that it is necessary or
desirable to direct the Primary Servicer as to how to allocate
amounts collected for an A/B Mortgage Loan between the holders of
the related Mortgage Loan and its related B Note, the Master
Servicer shall have the right, no later than the end of the second
Business Day after each of the A/B Mortgage Loan's scheduled monthly
payment dates, to deliver a written direction notice to the Primary
Servicer. The Primary Servicer shall comply with the Master
Servicer's directions, absent a disagreement (which shall be
promptly communicated in writing to the Master Servicer) and
addressed by the Master Servicer and the Primary Servicer within the
time frames set forth in this Section 2.1(c)(xii). If there is any
disagreement between the Master Servicer and the Primary Servicer
with respect to the allocation of funds on the A/B Mortgage Loan,
then the Master Servicer and the Primary Servicer shall consult with
each other in good faith but the determination of the Master
Servicer shall control and no consultation shall extend in duration
beyond the date reasonably necessary for allocations, remittances
and reporting to be timely made to the holders of the A Note and B
Note. In the event that collection responsibilities for an A/B
Mortgage Loan are transferred from the Primary Servicer to the
Master Servicer or Special Servicer pursuant to the applicable
provisions of this Agreement or the Pooling and Servicing Agreement,
all amounts that are collected by the Master Servicer or the Special
Servicer, as applicable, during a Collection Period with respect to
such A/B Mortgage Loan and are payable to the holder of the
applicable B Note pursuant to the provisions of the related A/B
Intercreditor Agreement shall be remitted by the Master Servicer to
such B Note holder no later than three Business Days after the
collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B
Note holder (except that if the related Mortgaged Property has
become an REO Property, then the funds on deposit in the related REO
Account related to such REO Property shall be remitted to the Master
Servicer by the Special Servicer as and to the extent otherwise
provided in Section 9.14(b) of the Pooling and Servicing Agreement
and then, to the extent remittable to the holder of the applicable B
Note, shall be so remitted on the next succeeding Master Servicer
Remittance Date).
(d) Commencing in the year 2007, Primary Servicer shall
inspect, or cause to be inspected, each of the Mortgaged Properties for
the Mortgage Loans and the A/B Mortgage Loans in accordance with Section
8.17 of the Pooling and Servicing Agreement and, promptly upon completion
of such inspection, shall deliver to Master Servicer and with respect to
an A/B Mortgage Loan, to the holder of the related B Note, if required by
the applicable A/B Intercreditor Agreement, a property inspection report
in the form attached as Exhibit B-3 ("Property Inspection Description").
Each property inspection report delivered by the Primary Servicer shall be
imaged with the ARCap Naming Convention for Electronic File Delivery.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In
the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
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(e) Primary Servicer shall promptly notify the Master Servicer
of any significant events affecting any one or more of the Mortgage Loans
and A/B Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties which become known to Primary Servicer or of which the Primary
Servicer receives notice, such as a payment default, a bankruptcy, a
judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Master Servicer of all material collection
and customer service issues and, promptly following any request therefor
by the Master Servicer, shall furnish to the Master Servicer with copies
of any correspondence or other documents in the possession of the Primary
Servicer related to any such matter. The Primary Servicer shall use
reasonable efforts to promptly notify the Master Servicer as soon as the
Primary Servicer (exercising good faith and reasonable judgment in
accordance with the Servicing Standard) becomes aware that any Servicing
Advance will be required (or may reasonably be expected to be required) to
be made with respect to any Mortgage Loan or any A/B Mortgage Loan under
the standards imposed on the Master Servicer by the Pooling and Servicing
Agreement.
(f) Within 30 days following the Closing Date, Primary
Servicer shall deliver to Master Servicer for each of its Mortgage Loans
and A/B Mortgage Loans to be included in the Escrow Status Report, the
deadline or expiration date contained in the applicable escrow or reserve
agreement for completing the specific immediate engineering work,
completion of additional construction, environmental remediation or
similar one-time projects for which such Mortgage Loan or A/B Mortgage
Loan is to appear in the Escrow Status Report.
(g) In addition, the Primary Servicer shall deliver or cause
to be delivered to Master Servicer any and all information as may
reasonably be necessary for the Master Servicer to perform its obligations
under Section 8.3(i) of the Pooling and Servicing Agreement (to the extent
related to the Mortgage Loans and/or A/B Mortgage Loans); provided,
however, that in the event that the Primary Servicer has sent a notice to
a ground lessor as contemplated by such Section 8.3(i) of the Pooling and
Servicing Agreement, the delivery to the Master Servicer of a copy of such
notice shall satisfy the Primary Servicer's obligation under this section
with respect to such ground lease.
(h) Primary Servicer shall perform all other obligations of
the Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection
with the performance of its obligations hereunder, the Primary Servicer shall be
entitled to request from the Master Servicer, and the Master Servicer agrees
that it shall provide, express instructions for the completion of any of the
Services to be performed or completed by the Primary Servicer, to the extent
necessary to clarify any ambiguities in the terms of this Agreement. The Master
Servicer further agrees that the Primary Servicer shall be entitled to rely upon
any such written instructions. The Primary Servicer and the Master Servicer,
respectively, shall perform all of their respective obligations as allocated and
set forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary servicing of the Mortgage
Loans and the A/B Mortgage Loans, except as specifically set forth in this
Agreement.
Section 2.2 Standard of Care The Primary Servicer shall perform all
Services on behalf of the Master Servicer in accordance with the terms of this
Agreement and the Servicing Standard and in a manner consistent with the
applicable provisions of the Pooling and Servicing Agreement and with respect to
an A/B Mortgage Loan, the applicable provisions of the related A/B Intercreditor
Agreement.
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Section 2.3 Compensation and Other Payments to the Primary Servicer
As consideration for the Primary Servicer's performance of the Services
hereunder: (a), the Primary Servicer shall be entitled to deduct the Aggregate
Servicing Fee in accordance with Section 2.1(c)(iii) of this Agreement, with
respect to the related Collection Period for each Mortgage Loan for which a
payment was received by the Master Servicer or forwarded to the Master Servicer
by the Primary Servicer; and (b) with respect to each A/B Mortgage Loan, the
Primary Servicer shall be entitled to deduct any Primary Servicing Fee or other
fee payable to the Primary Servicer as may be agreed to by the holder of the
related B Note, from each payment received by the Primary Servicer and which is
allocable to such holder of the related B Note, all in accordance with the
provisions of Section 2.1 of this Agreement. Notwithstanding the foregoing,
Primary Servicer shall not be entitled to a Primary Servicing Fee with respect
to any Mortgage Loan (other than an A/B Mortgage Loan) for which a Servicing
Transfer Event has occurred (unless such Mortgage Loan becomes a Rehabilitated
Mortgage Loan) or with respect to which the Primary Servicer has been terminated
as Primary Servicer under this Agreement and the Pooling and Servicing
Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing
Fee for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans
become Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Master Servicer (and any successor) shall cause the
Excess Servicing Fee to be paid on the Mortgage Loans to Primary Servicer
monthly in accordance with the terms of the Pooling and Servicing Agreement.
The Primary Servicer shall have the benefit and shall retain all
interest and income earned on the Primary Servicer Collection Account for the
Mortgage Loans and the A/B Mortgage Loans. If Primary Servicer is terminated
under this Agreement, it shall be entitled to collect all such interest and
income that accrues through the date of termination. If a Mortgage Loan or an
A/B Mortgage Loan becomes a Specially Serviced Mortgage Loan, Primary Servicer
shall be entitled to collect all such interest and income that accrues through
the date of the applicable Servicing Transfer Event. The right to retain such
interest and income shall resume if such Mortgage Loan or an A/B Mortgage Loan
becomes a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be
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specifically provided in this Agreement or (2) to the extent expenses are
reimbursable by a Mortgagor under the applicable Loan Documents and the
Mortgagor makes such reimbursement.
Section 2.4 Primary Servicer Representations and Warranties (a) The
Primary Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (i)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer and (ii) in lieu of the representation described in the first
clause of Section 8.20(a)(i) of the Pooling and Servicing Agreement, the Primary
Servicer represents that the Primary Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the
jurisdiction of its organization. Primary Servicer further represents that since
origination of each Mortgage Loan and A/B Mortgage Loan, Primary Servicer has
serviced each of the Mortgage Loans and A/B Mortgage Loans in accordance with
its terms.
(b) The Primary Servicer hereby makes for the benefit of the Master
Servicer the same representations and warranties as are made by the Primary
Servicer to the Depositor under Section 1.02 of that certain Indemnification
Agreement, dated October 18, 2006, between the Primary Servicer, the Depositor
and the Underwriter.
ARTICLE III.
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Mortgage Loan Documents The Primary
Servicer shall segregate the Primary Servicer Servicing Documents related to the
Mortgage Loans and the A/B Mortgage Loans from all other assets of the Primary
Servicer and, upon request, forward to the Master Servicer copies of such
documents or originals of such documents if in the possession of Primary
Servicer and not part of the Mortgage File forwarded to the Trustee. The Primary
Servicer acknowledges that any letter of credit held by it shall be held in its
capacity as agent of the Trust, and if the Primary Servicer sells its rights to
service the applicable Mortgage Loan or A/B Mortgage Loan, the Primary Servicer
shall assign the applicable letter of credit to the Trust or at the direction of
the Special Servicer to such party as the Special Servicer may instruct, and the
Primary Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment.
Section 3.2 Access to Documents; Provision of Certain Information
The Primary Servicer shall make available to the Master Servicer or any
Successor Primary Servicer, at a reasonable time, such information as the Master
Servicer or such Successor Primary Servicer shall reasonably request in writing
and shall make available to the Master Servicer or any Successor Primary
Servicer or Persons designated by the Master Servicer or such Successor Primary
Servicer such documents as the Master Servicer shall reasonably request in
writing. The Master Servicer shall make available to the Primary Servicer, at a
reasonable time, such information as the Primary Servicer shall reasonably
request in writing in connection with the performance of the Services and,
subject to the terms and conditions of Section 8.15 of the Pooling and Servicing
Agreement, shall make available to the Primary Servicer or Persons designated by
the Primary Servicer such documents related to the Mortgage Loan and the A/B
Mortgage Loans and the Servicing of the Mortgage Loans and the A/B Mortgage
Loans as the Primary Servicer shall reasonably request in writing.
ARTICLE IV.
MASTER SERVICER ASSISTANCE
Section 4.1 Master Servicer Assistance
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(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary and any other
notwithstanding provisions in this Agreement (including any contrary provision
of Exhibit B-2), the Primary Servicer shall do any and all things reasonably
requested by the Master Servicer to enable the Master Servicer to comply with
its obligations under the Pooling and Servicing Agreement. Before the Master
Servicer releases all or any portion of any Mortgage File or document contained
therein or acquired in respect thereof to the Primary Servicer, the Master
Servicer may require the Primary Servicer to execute a receipt therefor or, in
the event of a Mortgage Loan or an A/B Mortgage Loan that has been repaid in
full, a certificate with respect to the payment in full of the related Mortgage
Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services,
the Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans and
A/B Mortgage Loans and carry out its duties hereunder, in each case in
accordance with the Servicing Standard and the terms of this Agreement. The
Primary Servicer hereby agrees to indemnify the Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use of
any such power of attorney.
Section 4.2 Specially Serviced Mortgage Loans The Primary Servicer
shall promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Mortgagor that are received by the Primary Servicer
and with respect to such Mortgage Loan or A/B Mortgage Loan such other matters
as would, consistent with the Servicing Standard, require notification to the
owner or the servicer of the Mortgage Loan or A/B Mortgage Loan. The Master
Servicer shall notify the Primary Servicer of any Specially Serviced Mortgage
Loan becoming a Rehabilitated Mortgage Loan promptly following the Master
Servicer's receipt of notice to such effect from the Special Servicer and shall
provide Primary Servicer with all relevant documents received during the time
that the relevant Mortgage Loan or A/B Mortgage Loan was a Specially Serviced
Mortgage Loan following the Master Servicer's receipt of such documents from the
Special Servicer. Upon the request of Primary Servicer, Master Servicer shall
request from the Special Servicer all such relevant documents with respect to a
Rehabilitated Mortgage Loan. Notwithstanding anything contained herein to the
contrary, the Primary Servicer shall not without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Primary Servicer's 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
Primary Servicer is servicing pursuant to its duties herein (in which case the
Primary Servicer shall give three (3) Business Days prior notice to the Trustee
of the initiation of such action).
ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
Section 5.1 Notice of Litigation With respect to any Mortgage Loan
or A/B Mortgage Loan as to which litigation is instituted, the Primary Servicer,
if aware of such litigation, shall notify the Master Servicer immediately as to
the status of the litigation related to such Mortgage Loan or A/B Mortgage Loan
and shall, when reasonably required or requested by the Master Servicer, provide
to the
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Master Servicer copies of all pertinent information in the Primary Servicer's
possession related to such litigation, including, without limitation, copies of
related Servicing Documents.
Section 5.2 No Personal Solicitation The Primary Servicer hereby
agrees that it will not knowingly take any action or cause any action to be
taken by any of its agents or Affiliates, or independent contractors or working
on its behalf, to personally, by telephone or mail, solicit the prepayment of
any Mortgage Loan or A/B Mortgage Loan by any Mortgagor. Primary Servicer agrees
not to forward to any Mortgagor or other obligors under a Mortgage Loan or A/B
Mortgage Loan, any correspondence or documents between Master Servicer and
Primary Servicer regarding a Post Closing Request (except the Requirements List
(as defined in Exhibit B-2(c)) without the consent of the Master Servicer or
Special Servicer (acting in its sole discretion), unless required by law.
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy
(a) (a) The Primary Servicer, at its own expense, shall maintain in effect a
fidelity bond (the "Primary Servicer Fidelity Bond") and an errors and omissions
policy (the "Primary Servicer Errors and Omissions Insurance Policy") with a
Qualified Insurer, naming the Master Servicer as loss payee, affording coverage
for all directors, officers and employees. The Primary Servicer Errors and
Omissions Insurance Policy and Primary Servicer Fidelity Bond shall be in such
form and amount that would satisfy the same requirements for such policies as
the Master Servicer must satisfy as set forth in Section 8.2 of the Pooling and
Servicing Agreement. Notwithstanding any other provisions of this Agreement, the
Primary Servicer shall be permitted to self-insure with respect to its
obligations to maintain the Primary Servicer Fidelity Bond and a Primary
Servicer Errors and Omissions Policy to the extent the Master Servicer is
permitted under Section 8.2 of the Pooling and Servicing Agreement (construed as
if the references therein to the Master Servicer were instead references to the
Primary Servicer). The Primary Servicer shall furnish to the Master Servicer,
not later than thirty (30) days after the Closing Date, evidence of the Primary
Servicer's compliance with this Section 5.3(a).
(b) The Primary Servicer shall promptly report in writing to the
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions Insurance
Policy and shall furnish to the Master Servicer upon written request copies of
all binders and policies or certificates evidencing that such bond and insurance
policy are in full force and effect. The Primary Servicer shall promptly report
in writing to the Master Servicer all cases of embezzlement or fraud or
irregularities of operation relating to the servicing of the Mortgage Loans and
of the A/B Mortgage Loan by the Primary Servicer and its employees, officers,
directors, agents and representatives if such events involve funds relating to
the Mortgage Loans and the A/B Mortgage Loan. The total of such losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in such reports together with the amount of such losses
covered by insurance. If a bond or insurance claim report is filed with any of
the Primary Servicer's bonding companies or insurers relating to the Mortgage
Loans or the A/B Mortgage Loans or the servicing thereof, a copy of such report
(which report may omit any references to individuals suspected of such
embezzlement, fraud or irregularities of operation) shall be promptly furnished
to the Master Servicer.
Section 5.4 Primary Servicer's Financial Statements and Related
Information The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the Primary
Servicer, which financial statements shall be certified by the Primary
Servicer's chief financial officer to be true, correct and complete. The Primary
Servicer shall notify the Master Servicer, as of the Closing Date, of the
Primary Servicer's fiscal year and shall notify the Master Servicer promptly
after any change thereof.
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Section 5.5 No Advancing Under no circumstance shall the Primary
Servicer make or have an obligation to make any Advances.
Section 5.6 REMIC Compliance The Primary Servicer shall comply with
all of the obligations otherwise imposed on the Master Servicer under Article
XII of the Pooling and Servicing Agreement insofar as such obligations relate to
the Mortgage Loans and/or the A/B Mortgage Loans.
Section 5.7 Inspection Rights The Primary Servicer shall afford the
Master Servicer and the Trustee, upon reasonable notice and during normal
business hours, reasonable access to all records, information, books and
documentation regarding the applicable Mortgage Loans and the A/B Mortgage
Loans, and all accounts, insurance policies and other relevant matters relating
to this Agreement, and access to Primary Servicing Officers of the Primary
Servicer responsible for its obligations hereunder. Without limiting the
preceding sentence, Master Servicer may visit the offices of Primary Servicer no
more than once annually for the purpose of reviewing Primary Servicer's
compliance with this Agreement upon reasonable notice and during normal business
hours, and Primary Servicer shall reasonably cooperate with Master Servicer to
provide Master Servicer with the information that Master Servicer reasonably
requests to permit such review. Primary Servicer shall reimburse Master Servicer
for its reasonable and actual travel expenses incurred in connection with such
review in an amount not to exceed $5,000 annually in total for this Agreement
and all similar commercial mortgage loan servicing agreements in place between
Primary Servicer and Master Servicer. Primary Servicer shall have no obligation
to provide access to non-public information not pertaining to the Mortgage Loans
or the A/B Mortgage Loans or to proprietary information relating to Primary
Servicer.
Section 5.8 Authorized Officer Primary Servicer shall provide Master
Servicer promptly with a written list of authorized Servicing Officers of
Primary Servicer, which may be amended from time to time by written notice from
Primary Servicer to Master Servicer; provided, however, that such list shall
denote one principal Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
Section 5.9 Additional Reports Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans and the A/B
Mortgage Loans as the Master Servicer may from time to time reasonably request
in accordance with the Servicing Standard and shall reasonably cooperate with
Master Servicer to aid Master Servicer in its obligations to produce additional
reports and respond to inquiries under the Pooling and Servicing Agreement.
Section 5.10 Prepayment Interest Shortfalls and Excesses (a) For
any Mortgage Loan, Primary Servicer shall require Principal Prepayments to be
made so as not to cause a Prepayment Interest Shortfall. If the Loan Documents
of a related Mortgage Loan do not allow Primary Servicer to require Principal
Prepayments (or condition acceptance of Principal Prepayments) on a date that
will avoid a Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date
Mortgage Loan"), then the Primary Servicer shall pay to Master Servicer on the
date specified in Section 2.1(c)(iv) of this Agreement, in addition to all other
amounts due for such Principal Prepayment, an amount payable by the Primary
Servicer from its own funds without reimbursement therefor equal to any
Prepayment Interest Shortfall that results from such Principal Prepayment (for
the avoidance of doubt, no such reimbursement shall be required with respect to
any B Notes); provided, however, that for all Principal Prepayments received
during any Collection Period with respect to Non-Mandatory Prepayment Date
Mortgage Loans, the Primary Servicer shall in no event be required to remit an
amount greater than the amount of the Primary Servicing Fees for such Collection
Period, plus any investment income earned on the amount prepaid prior to the
related Distribution Date.
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(b) If the Mandatory Prepayment Date Assumption proves to be
inaccurate as to any Mortgage Loan and, as a direct consequence of that
inaccuracy, the Master Servicer is required to make a payment of Compensating
Interest on any Master Servicer Remittance Date pursuant to Section 8.10(c) of
the Pooling and Servicing Agreement in respect of Prepayment Interest Shortfalls
arising on that Mortgage Loan during the then most recently ended Collection
Period, the Primary Servicer shall reimburse the Master Servicer the amount of
such Compensating Interest payment attributable to that Mortgage Loan promptly
following request therefor by the Master Servicer (for the avoidance of doubt,
no such reimbursement shall be required with respect to any B Note). The amount
of damages, if any, due and owing from the Primary Servicer under the PCFII
Servicing Rights Purchase Agreement with respect to an inaccuracy of the
Mandatory Prepayment Date Assumption shall be reduced by the amount of any
Compensating Interest paid by the Primary Servicer hereunder with respect to the
applicable Mortgage Loan. For the avoidance of doubt, no such reimbursement
shall be required to be made in connection with Prepayment Interest Shortfalls
resulting from involuntary Principal Prepayments except to the extent the
Primary Servicer did not apply the proceeds of such involuntary Principal
Prepayments in accordance with the terms of the related Mortgage Loan documents.
(c) If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as required under Section 2.1 and Master
Servicer shall, on the Master Servicer Remittance Date immediately following the
remittance of the Principal Prepayment by the Primary Servicer to the Master
Servicer, remit to Primary Servicer a pro rata portion (based upon all
Prepayment Interest Excesses remitted to Master Servicer by all Primary
Servicers (as defined in the Pooling and Servicing Agreement) with respect to
such Collection Period) of the amount by which the amount of the Prepayment
Interest Excesses for such Collection Period exceed all Prepayment Interest
Shortfalls (excluding, with respect to all of the Primary Servicers, any
Prepayment Interest Shortfalls of the type described in clause (b) above) for
such Collection Period with respect to any of the mortgage loans (whether or not
the subject of this Agreement) that are serviced under the Pooling and Servicing
Agreement (except that if the aggregate pro rata portion owed to Primary
Servicer during any Collection Period as a result of such calculation exceeds
$20,000, Master Servicer shall remit to Primary Servicer such pro rata portion
no later than three (3) Business Days prior to the Distribution Date for the
applicable Collection Period).
Section 5.11 Consents Primary Servicer shall (a) obtain the consent
of the Special Servicer with respect to assignments and assumptions of Mortgage
Loans or A/B Mortgage Loans in accordance and subject to the terms of Section
A.1(c)(ii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the Pooling
and Servicing Agreement; (b) obtain the consent of the Master Servicer with
respect to the defeasance of Mortgage Loans in accordance with and subject to
the terms of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain
the consent of the Special Servicer with respect to additional liens, monetary
encumbrances and mezzanine financings in accordance with and subject to the
terms of Section A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Section 8.7
of the Pooling and Servicing Agreement; (d) notify Master Servicer of any
Materiality Determination, which shall thereafter be handled in accordance with
Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; and (e) with
respect to an A/B Mortgage Loan, if required by the related A/B Intercreditor
Agreement, obtain the consent of the holder of the related B Note for those
actions which require the consent of such B Note holder.
Section 5.12 Quarterly Servicing Accounts Reconciliation
Certification
Primary Servicer shall execute and deliver to Master Servicer a
certification substantially in the form set forth in Exhibit D hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in January 2007 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
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Section 5.13 Exchange Act Reports; Annual Compliance Documents
(a) Regulation AB Compliance. The Primary Servicer shall comply with
the reporting and certification requirements required to be complied with by a
"Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant" or an
"Additional Servicer" under Article XIII of the Pooling and Servicing Agreement
(whether or not the Primary Servicer's activities satisfy the percentage
requirement set forth in the definition of "Servicing Function Participant"
under the Pooling and Servicing Agreement (or, implicitly, in the definitions of
"Reporting Servicer" or "Sub-Servicer" under the Pooling and Servicing
Agreement) or the definitional requirements of "Additional Servicer" under the
Pooling and Servicing Agreement). The parties acknowledge the entitlement
granted to the Master Servicer and the Primary Servicer under the Pooling and
Servicing Agreement to conclusively assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. The
Primary Servicer shall be entitled to rely on such provisions of the Pooling and
Servicing Agreement and such acknowledgements for purposes of its duties under
this Section 5.13.
(b) General Reporting Obligations. The Primary Servicer shall comply
from time to time with the reporting and certification requirements set forth in
Section 5.13(c) with respect to each ABS Issuing Entity. For such purpose,
Section 5.13(c) shall be construed separately in relation to each ABS Issuing
Entity. If any mortgage loan serviced hereunder is not initially held by the
TOP24 Trust, then any ABS Issuing Entity to which such mortgage loan may
subsequently be transferred shall be recognized as an ABS Issuing Entity for
purposes of this Section from and after the effective date set forth in a notice
of such transfer delivered to the Primary Servicer, which notice sets forth the
name of the ABS Issuing Entity, the name and address of the depositor for such
ABS Issuing Entity, the name and address of the trustee for such ABS Issuing
Entity, the name and address of any paying agent and/or certificate
administrator for such ABS Issuing Entity that is not the same person as the
trustee for such ABS Issuing Entity and the name and address of the applicable
master servicer for such ABS Issuing Entity. In no event shall such an effective
date occur earlier than the date that is five (5) Business Days following the
delivery of such notice.
For example and not as a limitation of the preceding paragraph, if a
hypothetical promissory note designated "Note A-1" and a hypothetical promissory
note designated "Note A-2" are secured by the same mortgaged property, such
"Note A-1" is held by the TOP24 Trust and such "Note A-2" is held by a different
commercial mortgage trust, then (i) one set of the reports required hereunder
must be prepared and delivered with respect to the trust that holds such "Note
A-1" and a second set of the reports required hereunder must be prepared and
delivered with respect to the trust that holds such "Note A-2", (ii) for
purposes of measuring percentages of pool assets, the first set of reports must
reflect (where applicable) a measurement of percentages of pool assets by
reference to the pool of assets held by the trust that holds such "Note A-1" and
the second set of reports must reflect (where applicable) a measurement of
percentages of pool assets by reference to the pool of assets held by the trust
that holds such "Note A-2" and (iii) references in the succeeding provisions of
this Section to the "ABS Issuing Entity" shall mean, for purposes of the first
set of reports, the trust that holds such "Note A-1" and, for purposes of the
second set of reports, the trust that holds such "Note A-2".
(c) Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than the date set forth in Section 13.7 of the
Pooling and Servicing Agreement with respect to any event described below
of which the Primary Servicer becomes aware, the Primary Servicer shall
deliver to the Depositor or other Applicable Depositor (with a copy to the
Master Servicer) a report (a "Primary Servicer
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Form 8-K Information Report") setting forth all of the information
regarding such event that is required to be included in a Current Report
on Form 8-K ("Form 8-K") under the Exchange Act, to the extent that the
Primary Servicer is required to deliver such information under Article
XIII of the Pooling and Servicing Agreement.
(ii) Form 10-D Information. With respect to each ABS Issuing
Entity and each Distribution Date (for so long as such ABS Issuing Entity
is subject to Exchange Act reporting requirements), not later than the
date (in each month) set forth in Section 13.4 of the Pooling and
Servicing Agreement, the Primary Servicer shall deliver to the Depositor
or other Applicable Depositor (with a copy to the Master Servicer) a
report (a "Primary Servicer Form 10-D Information Report") setting forth
all of the information that is required to be included in the Asset-Backed
Issuer Distribution Report on Form 10-D ("Form 10-D") under the Exchange
Act relating to the Distribution Date occurring in such month, to the
extent that the Primary Servicer is required to deliver such information
under Article XIII of the Pooling and Servicing Agreement.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long as it
is subject to Exchange Act reporting requirements), not later than the
date in each month set forth in Section 13.5 of the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Depositor or other
Applicable Depositor (with a copy to the Master Servicer) a report (a
"Primary Servicer Form 10-K Information Report") setting forth all of the
information (other than a report regarding its assessment of compliance, a
report by a registered public accounting firm that attests to and reports
on such assessment report and a statement of compliance, which reports and
statements shall be governed by subsection (c)(iv)) that is required to be
included in an Annual Report on Form 10-K (a "Form 10-K") under the
Exchange Act relating to the most recently ended calendar year, to the
extent that the Primary Servicer is required to deliver such information
under Article XIII of the Pooling and Servicing Agreement.
(iv) Annual Compliance Information. Not later than the fifth
Business Day prior to the date when the Primary Servicer is required to
deliver such reports and statement under the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Master Servicer the
following reports and statement:
(A) a report regarding its assessment of compliance with
the servicing criteria specified in Item 1122(d) of Regulation AB,
as of and for the period ending the end of the prior calendar year,
with respect to asset-backed securities transactions taken as a
whole that are backed by the same asset type as that included in the
ABS Issuing Entity, which report of assessment shall or would
conform to the criteria set forth in Item 1122(a) and Item
1122(c)(1) of Regulation AB;
(B) a report by a registered public accounting firm that
attests to, and reports on, the assessment described in the
preceding clause (A), which report shall be made in a manner that
conform or would conform to the standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board and shall or would conform to the requirements of
Item 1122(b) and Item 1122(c)(1) of Regulation AB; and
(C) a statement of compliance from the Primary Servicer
that shall or would comply with Item 1123 of Regulation AB, and
signed by an authorized officer of the Primary Servicer, to the
effect that: (a) a review of the Primary Servicer's activities
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during the then most-recently ended calendar year and of its
performance 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 servicer has fulfilled all of its obligations
under this Agreement in all material respects throughout the then
most-recently ended calendar year or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status
thereof.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. Not later than the
fifth Business Day prior to the date when the Primary Servicer is required
to deliver such backup certification under the Pooling and Servicing
Agreement, the Primary Servicer shall execute and deliver to the Master
Servicer a backup certification, which shall be substantially in the form
attached as Exhibit CC-1 to the Pooling and Servicing Agreement in support
of any certification obligation to which the Master Servicer, the
depositor for the ABS Issuing Entity, the trustee for the ABS Issuing
Entity, the master servicer for the ABS Issuing Entity (if other than the
Master Servicer) or other similar party is subject under the governing
agreement for the ABS Issuing Entity in connection with the certification
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and Rule 302
of the Regulations with respect to the mortgage loans serviced by the
Primary Servicer under this Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by the
Primary Servicer shall appear under a cover substantially in the form attached
hereto as Exhibit E. Each report, certification and statement that is delivered
or rendered by the Primary Servicer itself shall be signed by an officer of the
Primary Servicer responsible for reviewing the activities performed by the
Primary Servicer under this Agreement. Each report delivered by the Primary
Servicer that contains Primary Servicer Form 8-K Reporting Information, Primary
Servicer Form 10-D Reporting Information or Primary Servicer Form 10-K Reporting
Information shall appear in the same form that a Form 8-K, Form 10-D or Form
10-K is required to appear under the Regulations, except that such report shall:
(i) omit the cover page that would be required under the
applicable form under the Regulations (but the report shall nonetheless
appear under a cover substantially in the form attached hereto as Exhibit
E, as contemplated above); and
(ii) omit to comply with the signature requirements that would
apply under the applicable form under the Regulations (but the report
shall nonetheless be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary Servicer
under this Agreement, as contemplated above, and shall contain a statement
to the effect that the report is submitted in connection with the
reporting obligations associated with the ABS Issuing Entity under the
Exchange Act).
In no event shall any statement or legend (whether such
statement or legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Master Servicer or the
Depositor in a report or certification filed with the SEC or otherwise pursuant
to the Regulations. The preceding statement shall not be construed to allow any
limitation on liability that is not otherwise contemplated under this Section.
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(f) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans that
are not serviced under this Agreement: (i) the final prospectus supplement
prepared by the Depositor with respect to the offering of the securities issued
by the ABS Issuing Entity and (ii) any reports delivered from time to time by
the Master Servicer, the master servicer for the ABS Issuing Entity (if such
party is not the Master Servicer), the trustee for the ABS Issuing Entity and/or
the paying agent, certificate administrator or other similar party for the ABS
Issuing Entity.
(g) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Primary Servicer, or any assignment of the obligations of the
Primary Servicer, pursuant to the other provisions of this Agreement, the
Primary Servicer shall remain obligated to comply from time to time with the
reporting and certification obligations that would have been applicable under
subsection (c) in the absence of such resignation, removal, termination or
assignment, but only to the extent related to the time period prior to the
effective date of such resignation, removal termination or assignment. Without
limiting the generality of the preceding statement, if the Primary Servicer
voluntarily assigns its obligations under this Agreement pursuant to the other
provisions of this Agreement (or with the consent of the Master Servicer), then
the successor Primary Servicer shall be obligated to cause the predecessor
Primary Servicer to perform the surviving reporting and certification
obligations set forth above and the failure to do so will constitute an "event
of default" on the part of the successor Primary Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to the
date of this Agreement. The parties acknowledge that the provisions of this
Section shall not be construed to require the Primary Servicer to sign any Form
8-K, Form 10-D or Form 10-K to be filed with respect to the ABS Issuing Entity
with the SEC (except to the extent, if any, that the Regulations require such
signature).
(i) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an interpretation of
the Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Master Servicer on the other, the
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, shall be conclusive and binding in the absence of manifest
error, and, for the purposes of this Agreement, the Primary Servicer shall be
entitled to rely on any such determination. If the Primary Servicer initiates
legal proceedings asserting an interpretation that differs from any such
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, the Primary Servicer shall comply with such determination of
the Master Servicer unless and until a final, nonappealable judgment is rendered
in connection with such proceedings, in which case such final, nonappealable
judgment shall control. If the Primary Servicer receives notice of
interpretations hereunder from the Master Servicer that conflict with each
other, the Primary Servicer shall promptly notify the Master Servicer, in which
case the Primary Servicer shall comply with the interpretation described in the
applicable written notice from the Master Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any contrary
provisions set forth in this Agreement, if the SEC or its staff issues any
order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the Applicable
Depositor and/or its affiliates or specifically to the applicable ABS Issuing
Entity, then, subject to the immediately succeeding sentence, the Primary
Servicer shall comply with such order, no-action letter or staff interpretation
insofar as such order, no-action letter or staff interpretation, or the
interpretations reflected therein, does or would (if implemented) affect the
reporting and certification obligations of the Primary Servicer hereunder. The
compliance obligation otherwise described in the preceding sentence shall not be
required unless there shall have been delivered to the Primary Servicer a notice
of such order, no-action letter or staff interpretation, which notice attaches a
copy of the applicable order,
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no-action letter or staff interpretation or relevant excerpts thereof.
(k) [Reserved.]
(l) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 5.13 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Primary Servicer to delegate its obligations under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the
Exchange Act or the Regulations are amended to impose additional or more
stringent reporting and/or certification obligations with respect to the ABS
Issuing Entity, which additional or more stringent reporting and/or
certification obligations are not otherwise effective pursuant to the other
provisions of this Agreement, the parties hereto shall negotiate in good faith
for an amendment to this Section 5.13 to result in compliance with such law or
regulation as so amended. In the event that the Securities Act, the Exchange Act
or the Regulations are amended to reduce reporting and/or certification
obligations with respect to the ABS Issuing Entity, the parties hereto shall
negotiate in good faith for an amendment to this Section 5.13 to result in
compliance with such law or regulation as so amended.
ARTICLE VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Primary Servicer Default Each of the following events
shall constitute a "Primary Servicer Default" hereunder:
(a) any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement;
or
(b) except in the case of Section 6.1(c), any failure by the
Primary Servicer duly to observe or perform in any material respect any of
the covenants or agreements on the part of the Primary Servicer contained
in this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such failure and
the Certificateholders and holders of any B Note shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Primary Servicer to cure such failure;
provided, however, that such cure period may not exceed sixty (60) days;
and provided, further, that if such failure to observe or perform on the
part of the Primary Servicer would result in an Event of Default (or an
event that with notice or the passage of time would constitute such an
Event of Default) by the Master Servicer under the Pooling and Servicing
Agreement or applicable A/B Intercreditor Agreement, then the cure periods
described in this Section 6.1(b) shall not apply; or
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(c) any breach of the representations and warranties made pursuant
to Section 2.4(b) hereof or any failure by the Primary Servicer to comply with
one or more provisions of Section 5.13 or clause (d) of Article VII; provided,
however, that all of the following provisions shall apply:
(A) to the extent the Master Servicer determines, in its
reasonable discretion, following consultation with the Applicable
Depositor, that the Primary Servicer is in good faith attempting to
remedy such failure and no Certification Party will be materially
and adversely affected by giving the Primary Servicer an opportunity
to cure such failure, the Master Servicer may, following
consultation with the Applicable Depositor, give the Primary
Servicer such opportunity;
(B) the period of time to cure such failure may not
exceed three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would result in either
failure by the Master Servicer (or the master servicer in an Other
Securitization) to submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor (or another
Applicable Depositor) to submit to the SEC, timely, complete and
accurate reports of the type described in Article XIII of the
Pooling and Servicing Agreement;
(D) unless the Master Servicer otherwise consents, the
cure period described in this Section 6.1(c) shall end on the
earlier of (I) the date on which the Master Servicer has delivered
(or would be required to deliver) a report or certification to the
Applicable Depositor or to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer and (II) the date on which the
Applicable Depositor has delivered (or would be required to deliver)
a report or certification to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to
comply with any of its obligations under Section 5.13(c)(i),
5.13(c)(ii), 5.13(c)(iii), 5.13(c)(iv)(A), 5.13(c)(iv)(B) or
5.13(c)(iv)(C) hereof on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in,
such Sections, (x) the Primary Servicer subsequently complies with
such obligations before the Master Servicer gives written notice to
the Primary Servicer that it is terminated in accordance with this
Section 6.1(c) and Section 6.2, (y) the Primary Servicer's failure
to comply does not cause termination of the Master Servicer under
Section 8.28(a)(xi) and Section 8.29 of the Pooling and Servicing
Agreement, (z) the Primary Servicer's failure to comply does not
cause the Paying Agent to fail in its obligations to timely file the
related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the
related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing
Deadline, then such failure of the Primary Servicer to so comply
shall cease to be a Primary Servicer Default under this Section
6.1(c) on the date on which such Form 8-K, Form 10-D or Form 10-K is
so filed; or
(d) any breach of the representations and warranties made
pursuant to Section 2.4(a) hereof that materially and adversely affects
the interest of the Master Servicer and that continues unremedied for a
period of twenty-five (25) days after the date on which written notice of
such breach, requiring the same to be remedied, shall have been given by
the Master Servicer to Primary Servicer; provided, however, that to the
extent the Master Servicer determines in its
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reasonable discretion that the Primary Servicer is in good faith
attempting to remedy such breach and the Certificateholders and holders of
any B Note shall not be materially and adversely affected thereby, such
cure period may be extended to the extent necessary to permit the Primary
Servicer to cure such breach; provided, however, that such cure period may
not exceed sixty (60) days; and provided, further, that if such failure to
perform on the part of the Primary Servicer results in an Event of Default
(or an event that with notice or the passage of time would constitute such
an Event of Default) by the Master Servicer under the Pooling and
Servicing Agreement or applicable A/B Intercreditor Agreement, then the
cure periods described in this Section 6.1(c) shall not apply; or
(e) any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
(f) 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 Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(g) the Primary 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 or of or relating to all or
substantially all of its property; or
(h) the Primary 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
(i) any other event caused by the Primary Servicer which
creates an Event of Default (or an event that with notice or the passage
time would constitute or result in such an Event of Default) of the Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement;
(j) if Primary Servicer becomes or serves as Master Servicer
at any time, any failure by the Primary Servicer duly to observe or
perform in any material respect any of the covenants or agreements of
Master Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement, which failure continues unremedied beyond the
expiration of applicable cure periods; or
(k) the Primary Servicer shall fail to terminate any
sub-servicer appointed by it that is a Reporting Servicer subject to and
in accordance with Section 8.4(c) of the Pooling and Servicing Agreement;
provided that the Depositor may waive any such Event of Default under this
clause (k) in its sole discretion.
Primary Servicer agrees to give prompt written notice to the Master
Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Primary Servicer Default.
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Section 6.2 Termination The obligations and responsibilities of the
Primary Servicer as created hereby (other than as expressly provided herein)
shall terminate upon the earliest to occur of (i) the receipt by the Primary
Servicer of the Master Servicer's written notice of such termination delivered
at the Master Servicer's option following the occurrence of a Primary Servicer
Default other than as described in Section 6.1(c), (ii) the occurrence of a
Primary Servicer Default described in Section 6.1(c) and (iii) the later of the
final payment or other liquidation of (x) the last Mortgage Loan or (y) the A/B
Mortgage Loan (the "Primary Servicing Termination Date"). From and after the
Primary Servicing Termination Date, the Primary Servicer shall, if applicable,
continue to cooperate in the transfer of primary servicing, including the
delivery of files and transfer of accounts as contemplated hereby but shall have
no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement, the Pooling and
Servicing Agreement and each A/B Intercreditor Agreement may be assumed by a
successor Master Servicer or the Trustee upon a termination of the Master
Servicer's servicing rights pursuant to the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm
to Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
(b) The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder shall survive the Primary Servicing Termination Date, but
only to the extent such reimbursement relates to a period prior to the
termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Master Servicer to terminate Primary Servicer upon
the occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
Section 6.3 Post-Termination Obligations In the event of a
termination of primary servicing due to a Primary Servicer Default, the Primary
Servicer shall promptly deliver the Primary Servicer Servicing Documents as
directed by the Master Servicer and remit to the Master Servicer, by wire
transfer of immediately available funds, all cash held by the Primary Servicer
with respect to the related Mortgage Loans and A/B Mortgage Loans, and shall, if
so requested by the Master Servicer, assign to the Master Servicer or a
Successor Primary Servicer, as directed by the Master Servicer, and in such
event the Master Servicer shall assume, or cause the Successor Primary Servicer
to assume, all service contracts related to the Mortgage Loans and the A/B
Mortgage Loans transferred thereon but only to the extent such contracts are
assignable and the required consents (if any) to such assignments have been
obtained. The Primary Servicer shall use all reasonable efforts to obtain the
consents required to effect such assignments.
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(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan and any A/B Mortgage Loan which are received by the Primary Servicer.
(c) The Primary Servicer shall provide to the Master Servicer
promptly (but in no event later than ten (10) Business Days) after the Primary
Servicing Termination Date the following information, in each case as of such
date: (a) a ledger accounting itemizing the dates and amounts of all payments
made, received or applied by the Primary Servicer with regard to each Mortgage
Loan and each A/B Mortgage Loan, further itemizing principal and interest
payments, tax payments, special assessments, hazard insurance, mortgage
insurance premiums, ground rents, if any, and all other payments and (b) a
current trial balance for each such Mortgage Loan and A/B Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the
Master Servicer, but not later than the Business Day following the Primary
Servicing Termination Date, the Primary Servicer shall commence and continue
diligently to completion at its own expense, to notify Mortgagors under the
related Mortgage Loans and A/B Mortgage Loans of the address to which payments
on such Mortgage Loans and A/B Mortgage Loans should be sent after the Primary
Servicing Termination Date; provided, however, that in any event, Primary
Servicer shall be obligated to notify Mortgagors within seven (7) Business Days
of the Primary Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan and any A/B Mortgage Loan which is received by the
Primary Servicer after the Primary Servicing Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and shall
forward to the Master Servicer and any Successor Primary Servicer such documents
as it may receive from time to time regarding any Mortgage Loan or A/B Mortgage
Loan transferred and provide such other assistance as may reasonably be required
by the Master Servicer or any Successor Primary Servicer regarding such
transfer.
(g) The Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on the Mortgage Loans and A/B Mortgage Loans
accrued through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
Section 6.4 Additional Termination Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
individual Mortgage Loan or A/B Mortgage Loan (i) if and when such Mortgage Loan
or A/B Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO
Mortgage Loan or (ii) if and when such Mortgage Loan or A/B Mortgage Loan is
sold or otherwise disposed of by or on behalf of the Trust (which sale or
disposition shall not include the transformation of a Mortgage Loan or A/B
Mortgage Loan into a Defeasance Loan). In the event of such termination, the
Primary Servicer shall comply with Section 6.3 as if a Primary Servicer Default
had occurred, except that such Section shall be construed to relate only to such
Mortgage Loan or A/B Mortgage Loan and references therein to Primary Servicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Primary Servicer shall cooperate in the orderly transfer of the
servicing of such Mortgage Loan or A/B Mortgage Loan and shall forward to the
Master Servicer such documents as it may receive from time to time with respect
thereto and provide such other assistance as may reasonably be required by the
Master Servicer with respect thereto. Primary Servicer shall be entitled
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to all fees, compensation, interest and earnings on such Mortgage Loan or A/B
Mortgage Loan accrued through the date of termination of its obligations and
rights with respect to such Mortgage Loan or A/B Mortgage Loan under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement. If such Mortgage Loan or A/B
Mortgage Loan subsequently becomes a Rehabilitated Mortgage Loan, then the
Primary Servicer shall promptly resume the servicing of such Mortgage Loan or
A/B Mortgage Loan in accordance with the terms hereof.
ARTICLE VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in
the case of material subcontracts and without prior notice to or the prior
written consent of the Master Servicer in the case of non-material subcontracts,
the Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans and A/B Mortgage
Loans; provided, however, that (a) the Primary Servicer shall remain fully
liable at all times for the performance of all Services and for all other
obligations hereunder; (b) in no event shall any such subcontractors make any of
the decisions, be given discretion to make any decisions, or have any authority
to make any decisions, required as part of a Category 1 Request or Category 2
Request or any decision or recommendation involving the exercise of the Primary
Servicer's discretion as a "lender" under any of the Loan Documents for the
Mortgage Loans and the A/B Mortgage Loans; (c) the Primary Servicer shall
maintain and perform policies and procedures to monitor such subcontractors'
performance of the services for which they are employed; and (d)(i) the Primary
Servicer shall not, for so long as any ABS Issuing Entity is subject to the
reporting requirements of the Exchange Act, engage any "Subcontractor" (as
defined in the Pooling and Servicing Agreement) after the Closing Date without
the Master Servicer's and the Depositor's prior written consent, which, in
either case, shall not be unreasonably withheld and (ii) the Primary Servicer
shall, with respect to each such Subcontractor with which it has entered into a
servicing relationship with respect to the Mortgage Loans after the Closing
Date, (A) include in a written agreement between the Primary Servicer and such
Subcontractor provisions analogous to those of Section 5.13 hereof, Section
6.1(c) hereof, Section 2.4(b) hereof, this clause (d) of this Article VII, the
last sentence of Section 10.11 hereof, the last sentence of Section 10.13 hereof
and the last sentence of Section 13.12 of the Pooling and Servicing Agreement
and (B) use reasonable efforts to cause such Subcontractor to comply with the
report delivery, indemnification and contribution obligations set forth in such
analogous provisions.
ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage
Loans held by the Primary Servicer, including but not limited to the Primary
Servicer Servicing Documents, mortgage servicing documents, books, computer
tapes and other documents and records (except for microfilm records) as well as
any reproductions or copies of such records furnished for the purposes of
performing Services from the Cut-off Date are, and shall continue at all times
to be, held by the Primary Servicer for the benefit of the Master Servicer and
for the Trustee and shall not be released, disseminated or otherwise made
available to third parties without the prior written consent of the Master
Servicer.
ARTICLE IX.
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity (a) The Primary Servicer
shall indemnify the Master Servicer, its officers, employees and agents against,
and hold the Master Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the
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Master Servicer arising out of or related to (i) a negligent or willful failure
of the Primary Servicer or any Person hired by the Primary Servicer to perform
properly any of the Services to be performed by the Primary Servicer pursuant to
the Payment and Collection Description, the Payment and Mortgage Loan Status
Reports, Post Closing Matters Description and Task Description, (ii) any failure
by the Primary Servicer to perform its obligations under this Agreement, or
(iii) breach of any of the Primary Servicer's representations and warranties
hereunder; provided, however, that the Primary Servicer shall not be required to
indemnify the Master Servicer, its officers, employees or agents against or hold
the Master Servicer, its officers, employees or agents harmless from any losses
to the extent that such loss is caused by the actions of the Master Servicer,
its officers, employees or agents in violation of the Master Servicer's duties
under this Agreement, under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement (except to the extent that such failure was caused by
the Primary Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Master Servicer shall promptly notify the
Primary Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans or the A/B Mortgage Loans entitling the Master
Servicer to indemnification hereunder. The Primary Servicer shall 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 Primary Servicer shall not affect any of the Master Servicer's rights to
indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, any holder of a B Note, the
Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith and using its reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Primary Servicer or any such
person against any breach of a covenant, 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 or by reason
of reckless disregard for its obligations and duties under this Agreement. The
Primary Servicer and any director, officer, employee or agent of the Primary
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
Section 9.2 Master Servicer's Indemnity The Master Servicer shall
indemnify the Primary Servicer, its officers, employees and agents against, and
hold the Primary Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the Primary
Servicer, to the extent arising out of, or related to reliance by the Primary
Servicer on, (i) pursuant to Section 5.13(i), an interpretation of the
Securities Act, the Exchange Act or the Regulations set forth in a written
notice from the Master Servicer to the Primary Servicer or (ii) any incorrect
asset pool balance supplied by the Master Servicer with respect to the TOP24
Trust, if such incorrect balance is the cause of any incorrect determination by
the Primary Servicer that an obligor on a Mortgage Loan is not a Significant
Obligor. The indemnification provided under this Section 9.2 shall survive the
Primary Servicing Termination Date.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Severability If any term, covenant, condition or
provision hereof is unlawful, invalid, or unenforceable for any reasons
whatsoever, and such illegality, invalidity, or unenforceability does not affect
remaining part of this Agreement, then all such remaining parts hereof
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shall be valid and enforceable and have full force and effect as if the invalid
or unenforceable part had not been included.
Section 10.2 Rights Cumulative; Waivers The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a waiver or amendment of that or any other
such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
stop or preclude such party from exercising any such right or constitute a
suspension or any waiver of any such right.
Section 10.3 Headings The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
Section 10.4 Construction Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. 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 10.5 Assignment (a) This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective permitted successors and assigns. This Agreement
and the rights and benefits hereunder of the Primary Servicer shall not be
assignable, and the duties and obligations hereunder of such party shall not be
delegable, except that in the following instances, Primary Servicer may assign,
sell or transfer its rights under this Agreement without the consent of (but
upon written notice to) the Master Servicer:
(i) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to a
parent company of Primary Servicer or a wholly-owned subsidiary or
Affiliate of such party, or a successor by merger or as the result of a
demutualization of a parent company of Primary Servicer, as long as such
successor has net assets and net worth equal to or greater than the net
assets and net worth of the Primary Servicer.
(ii) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to an
entity that then serves as a primary servicer for other mortgage loans
held by the Trust at the time of such assignment, sale or transfer.
(iii) With the prior written consent of the Master Servicer
and the Depositor which consent shall not be unreasonably withheld or
delayed, Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to any master
or primary servicer, if (1) such entity is either (a) rated by the Rating
Agencies as satisfactory or its equivalent in such capacity or (b)
approved by the Special Servicer and Operating Advisor (in addition to
Master Servicer as provided above), which approval shall not be
unreasonably withheld or delayed, and (2) Primary Servicer at its sole
cost receives Rating Agency Confirmation from the Rating Agencies prior to
such assignment, sale or transfer.
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(iv) Primary Servicer may subcontract certain of its rights
and obligations under this Agreement as expressly provided in and subject
to the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be
effective until such Successor Primary Servicer enters into a written agreement
reasonably satisfactory to the Master Servicer and the Depositor agreeing to be
bound by the terms and provisions of this Agreement (but not altering the
obligations under this Agreement); and (ii) not relieve the assigning Primary
Servicer of any duties or liabilities arising or incurred prior to such
assignment. Any costs or expenses incurred in connection with such assignment
shall be payable by the assigning Primary Servicer. Any assignment or delegation
or attempted assignment or delegation in contravention of this Agreement shall
be null and void. The proceeds of any assignment, sale or transfer permitted
under this Section 10.5 or to which consent was granted shall belong solely to
the assignor of such rights, and Master Servicer shall have no claim to them.
(b) Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary 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 Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer shall
have assumed the Primary Servicer's responsibilities and obligations under this
Agreement, and Special Servicer and Operating Advisor shall have consented to
such successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Master Servicer of
Primary Servicer's responsibilities and obligations under this Agreement
pursuant to this Section 10.6(a) shall not require the consent of Special
Servicer or Operating Advisor.
(c) The Primary Servicer may resign from the obligations and duties
imposed on it, upon 60 days' notice to the Master Servicer, provided that (i)
the Primary Servicer bears all costs associated with its resignation and the
transfer of servicing; (ii) Primary Servicer designates a successor servicer to
assume Primary Servicer's responsibilities and obligations under this Agreement;
(iii) Master Servicer, Special Servicer and Operating Advisor shall consent to
such successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the designation and assumption by Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this Section
10.6(b) shall not require the consent of Special Servicer or Operating Advisor.
(d) In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of resignation
under subsections (a) or (b) above, as the case may be.
Section 10.6 Prior Understandings This Agreement supersedes any and
all prior discussions and agreements between or among the Seller, the Primary
Servicer and the Master Servicer with respect to the Servicing of the Mortgage
Loans and the A/B Mortgage Loans and the other matters contained herein. This
Agreement, together with the Pooling and Servicing Agreement and each A/B
Intercreditor Agreement, contain the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein. Every
effort shall be made to construe this Agreement, the Pooling and Servicing
Agreement and each A/B Intercreditor Agreement consistently. If a conflict
exists between such agreements, then the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement
shall control. If this Agreement requires Primary
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Servicer to perform a task or duty, the details and obligations of which are (a)
set forth in this Agreement and (b)(i) are not set forth in the Pooling and
Servicing Agreement or with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, (ii) are set forth in the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement only in general terms, then Primary Servicer shall
perform such task and duties in accordance with the details and obligations set
forth in this Agreement. If this Agreement requires Primary Servicer to perform
a task or duty, the details and obligations of which are not set forth in this
Agreement but are contained in the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement,
then the Primary Servicer shall perform such task and duties in accordance with
the Pooling and Servicing Agreement.
Section 10.7 Integrated Agreement This Agreement constitutes the
final complete expression of the intent and understanding of the Primary
Servicer and the Master Servicer and may not be altered or modified except by a
subsequent writing, signed by the Primary Servicer and the Master Servicer.
Section 10.8 Counterparts This Agreement may be executed in any
number of counterparts, each of which shall constitute one and the same
instrument. Any party hereto may execute this Agreement by signing any such
counterpart.
Section 10.9 Governing Laws This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of law principles, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 10.10 Notices Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally or by
facsimile or (b) on the second following Business Day, if sent by overnight mail
or overnight courier, in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice);
If to the Master Servicer: As set forth in Section 14.5 of the
Pooling and Servicing Agreement
If to the Primary Servicer: Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Managing
Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Section 10.11 Amendment In the event that the Pooling and Servicing
Agreement or an A/B Intercreditor Agreement is amended, this Agreement shall be
deemed to have been amended and to the extent necessary to reflect such
amendment to the Pooling and Servicing Agreement or such A/B Intercreditor
Agreement, but no such amendment to the Pooling and Servicing Agreement or A/B
Intercreditor Agreement or deemed amendment to this Agreement shall increase the
obligations or decrease the rights of Primary Servicer under this Agreement
without its express written consent which consent shall not be unreasonably
withheld or delayed. For so long as any ABS Issuing Entity is subject to the
reporting requirements of the Exchange Act, the parties hereto may not amend or
modify any provision of Section 5.13, Section 6.1(c), Section 2.4(b), clause (d)
of Article VII, the last sentence of Section 10.13, or this sentence without the
Depositor's prior written consent.
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Notwithstanding anything to the contrary contained in this Section
10.11, the parties hereto agree that this Agreement may be amended pursuant to
Section 5.11 herein without any notice to or consent of any of the
Certificateholders, any B Note holder, Opinions of Counsel, Officer's
Certificates or Rating Agency Confirmation.
Section 10.12 Other This Agreement shall not be construed to grant
to any party hereto any claim, right or interest in, to or against the trust
fund created pursuant to the Pooling and Servicing Agreement or any assets of
such trust fund.
Section 10.13 Benefits of Agreement Nothing in this Agreement,
express or implied, shall be construed to grant to any Mortgagor or other
Person, other than the parties to this Agreement and the parties to the Pooling
and Servicing Agreement, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement, except that the Depositor, any other
Applicable Depositor and any master servicer for an ABS Issuing Entity other
than the TOP24 Trust are intended third-party beneficiaries of Section 5.13 and
Section 6.1.
[end of page]
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto by an authorized representative, all as of the day and
year first above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Senior Vice President
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Counsel
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Second Vice President
and Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULES
PCFII
Original
Mortgage Cut-Off Term to
Loan Loan Date Note Maturity Remaining Orig.
Seller Number Property Name Balance Date or ARD Term Amort. Rate
---- -------- ------ ------------------------------------- ----------- ---------- -------- --------- ------ -----
20 PCF II 000000 Xxx Xxxxxxxx Xxxxxx $15,000,000 09/05/2006 120 120 IO 6.100%
00 XXX XX 000000 Xxxxxxxxxxx Xxxxxx $12,500,000 08/21/2006 120 119 360 6.240%
00 XXX XX 000000 Xxxxxxxxx Xxxxxxxxxx $11,700,000 08/22/2006 120 119 IO 6.200%
00 XXX XX 000000 Xxxxxx Xxxxx Apartments $11,200,000 09/05/2006 120 120 420 6.170%
29 PCF II 755118 Lincroft Office Center $10,976,164 08/08/2006 120 119 240 5.990%
30 PCF II 755259 Log Hill Run $10,700,000 09/06/2006 120 120 360 6.220%
00 XXX XX 000000 Xxxxxx Xxxx Shopping Center $10,689,749 08/10/2006 120 119 360 6.200%
00 XXX XX 000000 Xxxxxx Xxxxx Xxxxxxx Xxxx $10,000,000 07/26/2006 120 118 IO 6.250%
34 PCF II 755221 Burlington Coat Factory Retail Center $10,000,000 09/01/2006 120 120 300 6.270%
36 PCF II 755224 Residence Inn by Marriott $8,970,350 08/16/2006 180 179 180 6.500%
39 PCF II 755323 0000 Xxxxxxxxx Xxxxxx $8,100,000 09/07/2006 120 120 360 6.200%
40 PCF II 755260 000 Xxxxx Xxxx $7,600,000 09/08/2006 120 120 IO 6.280%
45 PCF II 755217 000 Xxxxxxx Xxx Xxxxx $6,993,585 08/18/2006 120 119 360 6.430%
54 PCF II 755210 Xxxxxxxx Industrial Building $6,500,000 07/27/2006 120 118 360 6.300%
00 XXX XX 000000 Xxxxxxx Xxxx Crossing Shopping $6,100,000 09/19/2006 120 120 360 6.240%
67 PCF II 755253 Towne Centre Village Retail Center $5,650,000 09/11/2006 120 120 360 6.520%
00 XXX XX 000000 0000-0000 Xxxxxxx Xxxx West $4,995,365 07/28/2006 120 119 360 6.370%
72 PCF II 755162 000 Xxxx Xxxxxxxx Xxxx $4,995,210 08/17/2006 120 119 360 6.200%
00 XXX XX 000000 Xxxxxxx Xxxxxxx $4,700,000 08/04/2006 120 119 360 6.290%
00 XXX XX 000000 Xxxxx Xxxx Apartments $4,400,000 08/14/2006 120 119 IO 6.370%
90 PCF II 755258 0000 Xxx 000 $4,291,284 08/31/2006 240 239 240 6.550%
00 XXX XX 000000 Xxxxxxxxxxxx Xxxxxxxx $4,100,000 09/08/2006 120 120 360 6.260%
94 PCF II 755216 0000 Xxxxx Xxxxxx $4,089,562 07/26/2006 120 118 300 6.390%
00 XXX XX 000000 Xxxxxxx Xxx - Xxxxxxxxxxx XX $3,986,582 08/08/2006 180 179 180 6.290%
00 XXX XX 000000 Xxxxxxx Xxxxxxxx Xxxx $3,400,000 08/07/2006 120 119 360 6.430%
100 PCF II 755147 0000 X. 00xx Xxxxxx $3,396,848 08/01/2006 120 119 360 6.370%
104 PCF II 755234 Oaks Auto Center $3,147,180 08/18/2006 120 119 360 6.550%
105 PCF II 755317 000 Xxxxxxxx Xxxxx $3,100,000 09/15/2006 120 120 360 6.270%
106 PCF II 755261 5102 Calle del Sol $3,000,000 08/29/2006 120 120 360 6.420%
000 XXX XX 000000 Xxxxxxx Xxxxxx Shopping Center $3,000,000 08/17/2006 120 119 360 6.390%
108 PCF II 755164 361 & 000 Xxxx Xxxxxxxx Xxxx $2,997,126 08/17/2006 120 119 360 6.200%
109 PCF II 755257 00-000 Xxxxxxx Xxxxx $2,900,000 08/23/2006 120 119 336 6.480%
000 XXX XX 000000 Xxx Xxxx Xxxxxxx Building $2,300,000 09/07/2006 120 120 360 6.500%
136 PCF II 755208 00000 Xxxxxx Xxxxxx $1,867,034 07/18/2006 120 118 360 6.620%
000 XXX XX 000000 Xxx Xxxxxxx Xxxxxx Apartments $1,646,636 08/16/2006 240 239 240 6.500%
143 PCF II 755314 000 Xxxx Xxxx Xxxxxx $1,438,056 08/15/2006 120 119 300 6.430%
145 PCF II 755173 CVS Drug Store Land Lease $1,394,573 07/21/2006 240 238 240 6.560%
153 PCF II 755139 Xxx Supply $1,000,000 09/01/2006 120 120 360 6.690%
Monthly
Debt DEF/
Service Seasoning DEF YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2% 1% Open
---- ------- --------- --- ---- --- --- ------ ----- ------ --- -- --- ----- ------- --- --- ----
20 $77,309 0 92 4
24 $65,903 1 93 2
26 $61,290 1 93 2
27 $65,145 0 93 3
29 $78,744 1 91 4
30 $56,232 0 93 3
31 $65,534 1 91 25 4
33 $52,807 2 92 2
34 $66,091 0 93 3
36 $78,400 1 151 4
39 $42,431 0 118 2
40 $40,326 0 94 2
45 $43,923 1 93 2
54 $34,599 2 116 4
61 $37,519 0 94 2
67 $35,786 0 118 2
71 $31,177 1 93 2
72 $30,623 1 93 2
81 $24,978 1 93 2
84 $23,681 1 93 2
90 $32,186 1 190 2
93 $21,685 0 92 4
94 $27,402 2 92 2
97 $34,384 1 153 2
99 $18,471 1 93 2
100 $21,200 1 92 3
104 $20,014 1 93 2
105 $19,128 0 94 2
106 $16,273 0 94 2
107 $16,197 1 93 2
108 $18,374 1 93 2
109 $15,878 1 93 2
124 $14,538 0 94 2
136 $11,968 2 92 2
138 $12,302 1 213 2
143 $9,660 1 93 2
145 $10,488 2 212 2
153 $6,446 0 94 2
SCHEDULE II
[reserved]
EXHIBIT A
Pooling and Servicing Agreement
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
Payment and Mortgage Loan Status Reports
Exhibit B-1(a): Remittance report for payments received on Mortgage
Loans during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-2
Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon
Classification
EXHIBIT B-2(a)
Overview of Methodology of Allocation of
Responsibility on Post Closing Requests
When Primary Servicer receives a request from a Mortgagor or other
obligor under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action
("Post Closing Request") on its related Mortgage Loan or A/B Mortgage Loan,
Primary Servicer shall classify each Post Closing Request into one of the
following three (3) categories:
o Post Closing Requests over which Primary Servicer shall have
decision making authority to analyze, consent to, approve and
process such requests, subject to consent rights in certain
circumstances set forth in Exhibit B-2(c) below and, where
applicable, Deemed Category 1 Requests ("Category 1 Requests");
o Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information
together with a written analysis and recommendation for the consent
and approval of such requests to the Master Servicer or Special
Servicer, as applicable; other than Deemed Category 1 Requests
("Category 2 Requests"); and
o Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be
classified into one of the three (3) categories specified above and the
materials that follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance
with the Servicing Standard, the terms of this Agreement, the Pooling and
Servicing Agreement and with respect to any A/B Mortgage Loan, its applicable
A/B Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection
Description, Payment and Collection Reporting or Property Inspection
Description, which is covered elsewhere in this Agreement.
EXHIBIT B-2(b)
Chart Showing Classification of Post Closing Requests
Category When Applicable Examples Allocation of Fees
------------------------- --------------------------- ------------------------------------ ---------------------------------
1 Category 1 Requests Post Closing Request is Transfer rights contemplated in Primary Servicer collects entire
(other than Deemed either (a) specifically Loan Documents (including without administrative or processing fee
Category 1 Requests) authorized in the related limitation assignment and (including without limitation
Loan Documents (as defined assumption rights); partial defeasance fees), legal fees and
in Exhibit B-2(c)(A.1(b)), releases contemplated in Loan out-of-pocket expenses and 80%
either expressly as a Documents; easements contemplated of any additional fees or
matter of right in favor of in Loan Documents; evaluation of portions of fees (including
the Mortgagor or upon the alterations under specified without limitation transfer
satisfaction of certain threshold; administer, monitor and fees) payable to Master Servicer
specified conditions release of reserve or escrow under Pooling and Servicing
(including the exercise of amounts in accordance with reserve Agreement (i.e. transfer fee).
any specified standard of or escrow agreements; approval of Other 20% of such additional
consent or judgment within leases below threshold specified in fees are payable to Master
such conditions subject to Loan Documents; additional lien, Servicer. Special Servicer would
the terms of this monetary encumbrance or mezzanine receive any portion of fees due
Agreement); or (b) seeks financing placed on Mortgaged it under the Pooling and
the approval of the related Property that is specifically Servicing Agreement. Master
Mortgagee under the related contemplated in Loan Documents Servicer may also collect its
Loan Documents for a Lease under specified conditions; or out-of-pocket expenses which it
and/or the issuance of an process of defeasing a Mortgage shall itemize in reasonable
SNDA for a Lease. Loan (except defeasance of a detail.(1)
Specially Serviced Mortgage Loans
which shall not be the
responsibility of the Primary
Servicer) and servicing of Mortgage
Loans and A/B Mortgage Loans that
have been defeased; approval of a
Lease requiring such approval of
Mortgagee under the Loan Documents;
or issuance of an SNDA.
2 Category 2 Requests Post Closing Request (other Consent to easement not For all Mortgage Loans, other
for all Mortgage Loans than Category 3 Request) is contemplated in Loan Documents; than A/B Mortgage Loans: Primary
(other than A/B Mortgage (a) not specifically partial releases not specifically Servicer entitled to one hundred
Loans) and Deemed authorized or is prohibited contemplated in Loan Documents; or percent (100%) of administrative
Category 1 Requests or not addressed in the subordinate or mezzanine financing or processing fee. Additional
Loan Documents; and (b) not not specifically contemplated in fees are payable to Master
seeking approval of a Lease Loan Documents. Servicer and/or Special Servicer
requiring such approval of as specified in Pooling and
Mortgagee under the related Servicing Agreement. Master
Loan Documents or issuance Servicer may also collect its
of an SNDA. out-of-pocket expenses.(1)
For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
3 Category 3 Requests Post Closing Requests to Changes to maturity date, interest Primary Servicer not entitled to
Money Terms, Defaulted rate, principal balance, fee. Master Servicer or Special
Mortgage Loans or amortization term, payment amount Servicer is entitled to fees as
or frequency
----------
(1) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of Sections 2.1,
2.3, 6.3 and 6.4 of this Agreement.
Category When Applicable Examples Allocation of Fees
------------------------- --------------------------- ------------------------------------ ---------------------------------
Mortgage Loans upon which or frequency; or any actions to provided in the Pooling and
a Servicing Transfer Event loan in default Servicing Agreement.(1)
has occurred.
EXHIBIT B-2(c)
Process for Handling Post Closing Requests Upon Classification
A. Process for disposition of Post Closing Requests Once Classification is Made.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
1. Category 1 Requests and Deemed Category 1 Requests:
a) If Primary Servicer classifies a Post Closing Request as a
Category 1 Request or Deemed Category 1 Request, it shall promptly (but in no
event more than five (5) Business Days after receiving such request) notify
Master Servicer of (a) such request; (b) Primary Servicer's classification of
the Post Closing Request as a Category 1 Request or Deemed Category 1 Request;
and (c) Primary Servicer's Materiality Determination regarding any Category 1
Consent Aspect involved in such request. Notwithstanding the foregoing, as a
result of the quarterly reconciliation of reserve accounts that Primary Servicer
provides to Master Servicer under this Agreement, Primary Servicer shall have no
obligation (a) except as required under Section 8.18(d) of the Pooling and
Servicing Agreement, to notify or seek the consent of Master Servicer or Special
Servicer (as applicable) of any disbursement made from an escrow or reserve
account pursuant to and in accordance with the terms of such agreement governing
such reserve or escrow or (b) to seek consent of Master Servicer to extend (1)
the time available to a Mortgagor to complete repairs, replacements or
improvements pursuant to an escrow or reserve agreement or (2) the expiration
date of any letters of credit associated with such escrow or reserve, as long as
(i) Primary Servicer promptly notifies Master Servicer in writing of such
extension; (ii) the amount being held pursuant to the applicable escrow or
reserve agreement at the time of the proposed extension is less than
$1,000,000.00; (iii) the length of such extension when added to all other
extensions granted after the Closing Date does not exceed one hundred eighty
(180) days; and (iv) any such extension is in accordance with the terms of this
Agreement (including without limitation the Servicing Standard) and the Pooling
and Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement.
b) Primary Servicer shall evaluate the Category 1 Request or Deemed
Category 1 Request and process such request to meet the requirements set forth
in the loan documents for the applicable Mortgage Loan ("Loan Documents") in a
manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement. Such evaluation and processing may commence, and
continue but may not be completed prior to Primary Servicer's notice to Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request in
accordance with the terms of the Loan Documents, this Agreement and the Pooling
and Servicing Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement.
c) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1 Requests:
(i) If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
and the Loan Documents for such Mortgage Loan or A/B Mortgage
Loan expressly provide for a defeasance, Primary Servicer
shall treat such request as a Category 1 Request but shall, in
addition to the other provisions of this Section 1 of Exhibit
B-2(c), seek the prior written consent of Master Servicer
prior to consenting to such defeasance, which consent shall
not be withheld or delayed unreasonably when Primary Servicer
submits to
Master Servicer the items substantially as set forth on
Appendix 1 of this Agreement relating to such defeasance, and
any such decision of Master Servicer shall be in accordance
with the terms of the Loan Documents and the Servicing
Standard. Failure of the Master Servicer to notify the Primary
Servicer in writing of Master Servicer's determination to
grant or withhold such consent, within five (5) Business Days
following the Primary Servicer's delivery of the request for
defeasance described above and the relevant information
collected on such defeasance, shall be deemed to constitute a
grant of such consent.
(ii) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
to another Person who shall assume the Mortgage Loan or A/B
Mortgage Loan and the Loan Documents expressly permit such
assignment and assumption, subject to any conditions set forth
in the Loan Documents, Primary Servicer may treat such request
as a Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to
such assignment and assumption in accordance with the terms of
Section 8.7 of the Pooling and Servicing Agreement (subject to
any time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items substantially as set
forth on Appendix 2 of this Agreement relating to such
assignment and assumption. For the purpose of the foregoing
sentence, the term "expressly permits" shall have the meaning
assigned to it in Section 8.7 of the Pooling and Servicing
Agreement.
(iii) If a Mortgagor requests consent to place an additional lien,
monetary encumbrance or mezzanine financing on the related
Mortgaged Property and the Loan Documents expressly permit
such additional lien, monetary encumbrance or mezzanine
financing, subject to any conditions set forth in the Loan
Documents, Primary Servicer may treat such request as a
Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to
such additional lien, monetary encumbrance or mezzanine
financing in accordance with the terms of Section 8.7 of the
Pooling and Servicing Agreement (subject to any time periods
applicable to Primary Servicer or Special Servicer for the
giving, granting or deemed granting of such consent contained
in the Pooling and Servicing Agreement) by submitting to
Special Servicer the items substantially as set forth on
Appendix 3 of this Agreement relating to such additional lien,
monetary encumbrance or mezzanine financing. For the purpose
of the foregoing sentence, the term "expressly permits" shall
have the meaning assigned to it in Section 8.7 of the Pooling
and Servicing Agreement.
(iv) If a Mortgagor requests consent to enter into a Lease on the
related Mortgaged Property (and/or the associated issuance of
an SNDA for such Lease), which Lease (a) requires the consent
of the Mortgagee under the related Loan Documents and (b)
qualifies as a Significant Lease, Primary Servicer may treat
such request as a Category 1 Request but shall, in addition to
the other provisions of this Section 1 of Exhibit B-2(c), seek
the prior written consent of Master Servicer, which consent
shall not be withheld or delayed unreasonably, prior to
consenting to or disapproving of such Significant Lease
(and/or the related SNDA) by submitting to
Master Servicer the items substantially as set forth on
Appendix 4 of this Agreement relating to such Significant
Lease (and/or related SNDA). Failure of the Master Servicer to
notify the Primary Servicer in writing of Master Servicer's
determination to grant or withhold such consent within ten
(10) Business Days following the Primary Servicer's delivery
of the request for consent to the Lease, shall be deemed to
constitute a grant of such consent.
(v) If Primary Servicer makes a Materiality Determination that a
Category 1 Consent Aspect is material, then Primary Servicer
shall treat such request as a Category 1 Request, but shall,
in addition to the other provisions of this Section A.1 of
this Exhibit B-2(c), seek the prior written consent of Special
Servicer prior to consenting to the applicable Category 1
Request, which consent shall not be withheld or delayed
unreasonably, and any such decision of Special Servicer shall
relate only to the Category 1 Consent Aspect and shall be in
accordance with the terms of the Loan Documents and the
Servicing Standard. Failure of the Special Servicer to notify
the Primary Servicer in writing of Special Servicer's
determination to grant or withhold such consent, within five
(5) Business Days following the Primary Servicer's delivery of
the request for consent to the Category 1 Consent Aspect,
shall be deemed to constitute a grant of such consent.
d) Upon conclusion of the negotiations of the documentation for the
Category 1 Request or Deemed Category 1 Request, Primary Servicer may execute
and deliver the operative documents to be executed to effect the Category 1
Request and take the other actions necessary or appropriate to conclude such
request, in each case in accordance with the terms of this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
e) Concurrently with the execution of this Agreement, Master
Servicer shall provide to Primary Servicer a counterpart original of the Power
of Attorney executed by the Trust in favor of the Master Servicer and shall
execute and deliver to Primary Servicer a Power of Attorney attached to this
Agreement as Exhibit C. Primary Servicer shall promptly notify Master Servicer
of the execution and delivery of any document on behalf of the Master Servicer
and Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
1 Request or Deemed Category 1 Request. Such request shall not relieve Primary
Servicer of its obligations under this Agreement regarding a Category 1 Request
or Deemed Category 1 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
g) Upon completion of each Category 1 Request or Deemed Category 1
Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Master Servicer and Special
Servicer (if its consent was required) and shall accompany such notice with a
brief summary of the Category 1 Request or Deemed Category 1 Request, a brief
summary of Primary Servicer's analysis and decision regarding such request, a
POA Notice (if required) and a counterpart original or copy of the operative
documents executed or received to effect the Category 1 Request or Deemed
Category 1 Request.
h) Notwithstanding the foregoing with the consent of Master
Servicer, Primary Servicer may elect to classify and treat a Post Closing
Request that otherwise qualifies as a Category 1 Request or
Deemed Category 1 Request, as a Category 2 Request instead. In such case,
Primary Servicer shall adhere to the provisions of this Agreement regarding
Category 2 Requests or Deemed Category 1 Requests, and all aspects of such
request (including without limitation the allocation of fees) shall be governed
by the terms of this Agreement covering Category 2 Requests. Primary Servicer's
decision in any one instance to treat a Post Closing Request that otherwise
qualifies as a Category 1 Request or Deemed Category 1 Request, as a Category 2
Request instead, shall not compromise or affect its right on any other occasion
to treat a similar request as a Category 1 Request or Deemed Category 1 Request.
i) Notwithstanding anything to the contrary in this Section 1, if a
Category 1 Request or Deemed Category 1 Request involves an action requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall not be permitted to take any such actions
without the consent of Special Servicer in accordance with such Section 8.18(d).
For any action relating to a Mortgage Loan or an A/B Mortgage Loan requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall have the responsibility to seek the consent of
Special Servicer in accordance with such section. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 1 Requests or Deemed Category 1 Requests as set forth above.
2. Category 2 Requests (other than Deemed Category 1 Requests):
a) If Primary Servicer classifies a Post Closing Request as a
Category 2 Request, it shall promptly (but in no event more than five (5)
Business Days after Primary Servicer's receiving such request) notify Master
Servicer of receiving such request, of the type of request and of Primary
Servicer's classification of the Post Closing Request as a Category 2 Request.
As part of such notice, Primary Servicer shall include the following:
(i) If such type of request has not previously been the subject of
a Category 2 Request or a Requirements List (as defined below)
has not previously been provided to Primary Servicer, then
Primary Servicer shall request from Master Servicer a detailed
list of the requirements to be satisfied for such request (the
"Requirements List"). Master Servicer shall promptly (but in
no event more than five (5) Business Days after receiving
notification of such request) provide to Primary Servicer a
Requirements List for such request.
(ii) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer shall
submit the existing Requirements List to Master Servicer.
Primary Servicer may use such Requirements List for such
request unless Master Servicer provides to Primary Servicer a
replacement Requirements List within five (5) Business Days of
such notice.
b) A Requirements List (i) shall in no event be more burdensome than
that required by Master Servicer of other loans in the Trust for similar Post
Closing Requests; (ii) shall not require Primary Servicer to incur additional
third party costs or expenses; and (iii) shall require the gathering, collection
and assembling of information only and not the preparation, evaluation, analysis
of information or a recommendation regarding the Post Closing Request.
c) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall provide to Master Servicer all of the assembled
items, a list of the items collected from the Requirements List, a list of any
items not collected, any reasons why such items were not collected, a written
analysis of the Category 2 Request in light of the items collected in a form
reasonably satisfactory to Master Servicer, a
recommendation whether to approve or disapprove such request and the appropriate
division of the applicable fees in accordance with the terms of this Agreement
and the Pooling and Servicing Agreement.
d) Master Servicer shall use its reasonable best efforts to notify
Primary Servicer with a consent or disapproval of the Category 2 Request within
ten (10) Business Days of receiving such assembled items, analysis and
recommendation. If Master Servicer disapproves such request, it shall provide
Primary Servicer the reasons for such disapproval. If Master Servicer approves
such request, Primary Servicer shall promptly process the Category 2 Request in
a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall draft, or cause to be drafted,
all documents necessary to effect the Category 2 Request in accordance with the
terms of the consent, the Loan Documents, this Agreement and the Pooling and
Servicing Agreement, and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall deal directly with the
applicable Mortgagor regarding a Category 2 Request after Primary Servicer
submits the items on the applicable Requirements List.
e) Upon conclusion of the negotiations of the documentation for the
Category 2 Request for which Master Servicer has granted its consent, Primary
Servicer may execute and deliver the operative documents to be executed to
effect the Category 2 Request and take the other actions necessary or
appropriate to conclude such request, in each case in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
f) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
2 Request, which documents shall be prepared by the Primary Servicer. Such
request shall not relieve Primary Servicer of its obligations under this
Agreement regarding a Category 2 Request, including without limitation its
obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement and any indemnification
obligation of Primary Servicer.
g) Upon completion of each Category 2 Request, Primary Servicer
shall promptly (but in no event more than ten (10) Business Days after
concluding such request) notify Master Servicer and shall accompany such notice
with a copy of the operative documents executed or received to effect the
Category 2 Request.
h) Notwithstanding anything to the contrary in this Section 2, if a
Category 2 Request involves an action requiring the consent of Special Servicer
under Section 8.18(d) of the Pooling and Servicing Agreement, Primary Servicer
shall not be permitted to take any such action without the consent of Special
Servicer in accordance with such Section 8.18(d). For any action relating to a
Mortgage Loan or an A/B Mortgage Loan requiring the consent of Special Servicer
under Section 8.18(d) of the Pooling and Servicing Agreement, Primary Servicer
shall have the responsibility to seek the consent of Special Servicer in
accordance with such section. The foregoing conditions and requirements shall be
in addition to the other conditions and requirements for Category 2 Requests as
set forth above.
3. Category 3 Requests:
a) If Primary Servicer classifies a Post Closing Request as a
Category 3 Request, it shall promptly (but in no event more than five (5)
Business Days after receiving such request) notify Master Servicer and Special
Servicer of receiving such request and of Primary Servicer's classification of
the
Post Closing Request as a Category 3 Request and shall refer such Category 3
Request to the Special Servicer for handling in accordance with the Pooling and
Servicing Agreement.
b) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request shall
be directed to and through the Special Servicer (unless the Special Servicer and
Master Servicer shall otherwise direct the Primary Servicer). Primary Servicer
shall forward all correspondence and other information regarding such request in
its possession to Special Servicer.
B. Dispute of Classification.
1. Notification of Dispute. If either Master Servicer or Special Servicer
disputes the classification of Primary Servicer of any Post Closing Request (for
purposes of this Section B, the term "classification" shall include a
Materiality Determination of Primary Servicer regarding a Category 1 Consent
Aspect with respect to such Post Closing Request), then Master Servicer or
Special Servicer, as applicable, shall notify Primary Servicer of such dispute
promptly (but in no event more than five (5) Business Days from Primary
Servicer's notice of such classification) in writing and the specific reasons
for such dispute. The parties shall then work in good faith for a period not
more than five (5) Business Days to resolve the classification of the Post
Closing Request. Primary Servicer's classification of a Post Closing Request
shall govern the handling of such request absent Primary Servicer's receipt of
notice of such dispute within the specified time period but shall not diminish
the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
2. Resolution of Dispute in Absence of Agreement. If after such good faith
efforts to resolve such classification dispute the parties cannot agree to a
classification, then the following shall apply: For Mortgage Loans or A/B
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is in excess of two percent (2%) of
the then Aggregate Principal Balance, then the good faith classification of the
Master Servicer or Special Servicer, as applicable, shall govern. For Mortgage
Loans that individually, or together with all other Mortgage Loans and A/B
Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is equal to or less than two percent
(2%) of the then Aggregate Principal Balance, then the good faith classification
of the Primary Servicer shall govern; provided that, in no event, shall Primary
Servicer's classification govern if such classification would, in the sole
judgment of Master Servicer or Special Servicer (as applicable), conflict with
any provision of the Pooling and Servicing Agreement or result in a default by
Master Servicer or Special Servicer under the Pooling and Servicing Agreement.
3. Processing of Post Closing Request During Dispute. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist but in any event the processing of a Post Closing
Request must be accomplished in a manner consistent and in compliance with the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
EXHIBIT B-3
Forms of Property Inspection Reports
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-TOP24
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
1. Asset Files
Original credit file management X
Original collateral file (security) X
Authorized parties list for request for X X
release of collateral from Trustee
Establish servicing files criteria X X
Provide access to servicing files and X
copies of servicing files or of specific
docs upon request to the Master Servicer
Request delivery of files from Trustee X
upon request and certification of Primary
Servicer
2. Property Taxes
Preparation and delivery of quarterly tax X
delinquency reports
Monitoring of tax status - Loans X
with/without escrows
Recommendation of payment of taxes - Loans X
with/without escrows
Notification of advance requirement 3 X
business days prior to advance being
required
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Preparation and delivery of quarterly X
insurance tickler reports
Monitoring of insurance status - Loans X
with/without escrows
Ensure insurance carrier meets Pooling and X
Servicing Agreement qualifications
Ensure insurance in favor of the Master X
Servicer on behalf of the Trustee
Recommendation of payment or force X
placement of insurance with/without escrow
Notification of advance requirement or X
force placement of insurance 3 business
days prior to advance being required
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
Payment of insurance - with sufficient X
escrows
Payment of insurance or force placement - X
with escrow shortfall
Category 1 Requests and Deemed Category 1
Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
Category 2 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
4. UCC Continuation Filings
Preparation and delivery of quarterly UCC X
tickler report
Maintain tickler system of refiling the X
dates on all Loans
File UCC Continuation Statements X
Pay recording fees X
Monitor tickler system X
5. Collection/Deposit/Distribution of P&I
payments and Principal Prepayments
Collection and deposit of loan P&I payments X
Remittance of available Primary Servicer X
P&I payments to Master Servicer and B Note
holders, as applicable (net of Aggregate
Servicing Fee and other fees payable to
the Primary Servicer by the B Note holders)
Provide Collection Reports to Master X
Servicer
Distribution of P&I payments to the Trustee X
Distribution of Special Servicer X
compensation
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
7. Customer Billing, Collection and Customer
Service
Contact delinquent borrowers by phone 3 X
days after delinquent date
Send 30 day delinquent notices X
Send notice of balloon payment to each X
Mortgagor one year, 180, and 90 days prior
to the related maturity date
Provide copy of Balloon Mortgage Loan X
notice to Master Servicer
8. Escrows
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
Setup and monitor Escrow Accounts X
including escrow analysis
Pay borrower investment income required X
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and X
telecopy to Master Servicer
Approve payoff calculations and telecopy X
approval to Primary Servicer within five
(5) Business Days
10. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating X
statements, budgets, rent rolls and
borrower financial statements, as
applicable.
Deliver Operating Statement Analysis X
Report, CMSA Financial File and NOI
Adjustment Worksheet in accordance with
Section 2.1(c)(viii) of this Agreement.
Deliver one (1) copy of quarterly and X
annual operating statements, budgets, rent
rolls and borrower financial statement, as
applicable, within thirty (30) days of
Primary Servicer's receipt
Complete CMSA Loan Setup File for Mortgage X X
Loans
Complete CMSA Loan Periodic Update File X
for Mortgage Loans
Complete and deliver CMSA Property File X
for Mortgage Loans
Complete and deliver quarterly Operating X X
Statement Analysis Report and CMSA
Quarterly Financial File in accordance
with Section 2.1(c)(viii) of this
Agreement.
Cash account Reconciliations - Copies of X
monthly bank statements for all deposit,
escrow and reserve accounts
CMSA Supplemental Reports
Complete Servicer Watch List X
Complete Comparative Financial Status X
Report
Delinquent Loan Status Report X
REO Status Report X
Historical Loan Status Report X
Historical Liquidation Report X
CMSA Loan Level Reserve/LOC Report X
11. Advancing
Determination of Non-Recoverability X
12. Borrower Inquiries/Performing Loans
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
Performing Loans - respond to routine X
billing questions
Category 1 Requests and Deemed Category 1
Requests
Assumptions & Due on sale:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of assumption X
Consent to assumption X
Close assumption X
Category 2 Requests
Assumptions & Due on sale:
Initial Borrower contact and data X
gathering
Underwriting and analysis X X
Approval of assumption X X
Consent to assumption X
Close assumption (directly with X
Borrower)
Category 1 Requests and Deemed Category 1
Requests
Additional Liens, Monetary
Encumbrances or Mezzanine Financing:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of additional lien, X
monetary encumbrance or mezzanine
financing
Consent to additional lien, X
monetary encumbrance or mezzanine
financing
Close additional lien, monetary X
encumbrance or mezzanine financing
Category 2 Requests
Additional Liens, Monetary
Encumbrances or Mezzanine Financing:
Initial Borrower contact and data X
gathering
Underwriting and analysis X X
Approval of additional lien, X X
monetary encumbrance or mezzanine
financing
Consent to additional lien, X
monetary encumbrance or mezzanine
financing
Close additional lien, monetary X
encumbrance or mezzanine financing
(directly with Borrower)
Modifications (Non-Money Terms), Waivers,
Consents and Extensions up to 60 days (not
otherwise provided in this Agreement):
Initial Borrower contact and data X
gathering
Underwriting and analysis X
Approval of modification and extensions X
up to 60 days (Category 1 Requests and
Deemed Category 1 Requests)
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
Approval of modification and extensions X
up to 60 days (Category 2 Request)
Consent to modification and waivers and X
other consents (not otherwise provided
in this Agreement)
Closing Documents and Closing X
Modification (Money Terms): X
Extensions of Maturity Date (more than 60 X
days):
Response to request for Discounted X
Payoffs, Workouts, Restructures,
Forbearances and Casualties
Condemnation (only with respect to X X X
Specially Serviced Mortgage Loans the
Special Servicer will perform such
functions)
13. Monthly Reporting (Hardcopy & Electronic mail)
Day One Report X
Delinquency and past due reporting on all X
Loans
Deliver on April 25, July 25, October 25 X
and January 25 of each year a Quarterly
Servicing Accounts Reconciliation
Certification in the form of Exhibit D
14. Category 1 Requests and Deemed Category 1
Requests
Release of Collateral
Determination if collateral should X
be released
Consent to release collateral X
Request delivery of files from X
Trustee upon Primary Servicer
request and certification
Preparation and recordation of X
release deeds all Loans (full and
partial)
Category 2 Requests
Release of Collateral
Initial Borrower contact and data X
gathering
Underwriting and analysis X
Determination if collateral should X
be released
Consent to release collateral X
Request delivery of files from X
Trustee
Preparation and recordation of X
release deeds all Loans (full and
partial)
15. Property Annual Inspections
Conduct site inspection per Pooling and X
Servicing Agreement requirement
Provide 3 copies of site inspection X
reports to the Master Servicer within 30
days of inspection but not later than
December 15 of each year beginning in 2007
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
--- ---------------------------------------------- --------- -------- --------- -------
16. Preparation of servicing transfer letters X
17. Preparation of IRS Reporting (1098s and 1099s X
or other tax reporting requirements) and
delivery of copies to the Master Servicer by
January 31 of each year
18. Provide Primary Servicer Form 8-K Information X
Reports, Primary Servicer Form 10-D
Information Reports and Primary Servicer Form
10-K Information Reports at the times and in
the manner set forth in Section 5.13(c) of
this Primary Servicing Agreement
19. Provide annual statement of compliance at the X
times and in the manner set forth in Section
5.13(c) of this Primary Servicing Agreement
20. Provide either (a) a report regarding Primary X
Servicer's assessment of compliance with
servicing criteria and a report by a
registered public accounting firm that
attests to and reports on such assessment
report or (b) a report of a firm of
independent public accounts based on
USAP-compliant examinations, as the case may
be, at the times, in the manner and as
specified in Section 5.13(c) of this Primary
Servicing Agreement.
21. Provide annual Xxxxxxxx-Xxxxx back-up X
certification at the times and in the manner
set forth in Section 5.13(c)(v) of this
Primary Servicing Agreement
22. Compensation
Primary Servicer Fee and other fees X
payable to the Primary Servicer by the B
Note holders
Investment earnings on Primary Servicer X
Collection Account
Investment earnings on tax & insurance X
reserves not payable to borrower
Investment earnings on reserve accounts X
not payable to borrower
Late charges to the extent collected from X
borrower (offsets advance interest per
Pooling and Servicing Agreement)
23. Defeasance
Coordinate, analyze, approve, and process X
defeasance request
Consent to defeasance X
Service Defeasance Loans X
Retain all fees associated with Defeasance X
Loans
EXHIBIT C
Form of Power of Attorney from Master Servicer
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2006-TOP24
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting solely in its
capacity as Master Servicer ("Master Servicer"), under the Pooling and Servicing
Agreement dated as of October 1, 2006 (the "Pooling and Servicing Agreement")
and a Primary Servicing Agreement dated as of October 1, 2006 (the "Primary
Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24, does hereby nominate, constitute
and appoint Principal Global Investors, LLC ("PGI"), as Primary Servicer under
the Primary Servicing Agreement ("Primary Servicing Agreement"), 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 PGI to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by PGI of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto PGI 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 PGI 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 ______________.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement and the Primary Servicing
Agreement
By:_______________________________________
Name:
Title:
EXHIBIT D
Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer: Principal Global Investors, LLC
RE: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24
Pursuant to the Primary Servicing Agreement between Xxxxx Fargo
Bank, National Association ("Xxxxx Fargo Bank") and Principal Global Investors,
LLC ("Primary Servicer") for the transaction referenced above, I hereby certify
with respect to each mortgage loan serviced by Primary Servicer for Xxxxx Fargo
Bank for such transaction that within 25 days after the end of each of the
months of [January, February and March][April, May and June][July, August and
September][October, November and December], any and all deposit accounts, escrow
accounts and reserve accounts, and any and all other collection accounts and
servicing accounts, related to such mortgage loan have been properly reconciled,
and the reconciliations have been reviewed and approved, by Primary Servicer's
management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Principal Global Investors, LLC
Date: [April, July, October, January] 25, [20__]
EXHIBIT E
Form of Cover Page for Report or Certification
Compliance Information Report
-----------------------------
Identifying Information for this Report:
Date of Submission: _______
Depositor: ________________________________________________
Trust: ________________________________________________
Pooling and Servicing Pooling and Servicing Agreement dated as of
Agreement: _______, ___, among
____________________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________, ___,
between Xxxxx Fargo Bank, National Association,
as master servicer, and ______________, as
Primary Servicer.
Master Servicer: Xxxxx Fargo Bank, National Association
Primary Servicer: ________________________________________________
Primary Servicer Contact [Name][telephone][facsimile][email address]
Person:
This Report Contains the Following Information:
Immediate Reporting:
[_] Form 8- K Reporting Information
Monthly Reporting:
[_] Form 10-D Reporting Information
Annual Reporting:
[_] Form 10-K Reporting Information
Annual Compliance:
[_] Compliance Assessment Report (Item 1122(a)) by
Primary Servicer on Compliance With Servicing
Criteria in Item 1122(d) of Regulation AB
[_] Attestation Report (Item 1122(b)) by Registered
Public Accounting Firm on Compliance Assessment
Report
[_] Statement of Compliance (Item 1123)
[_] Xxxxxxxx-Xxxxx Back-Up Certification
This Report Amends Prior Reporting Information:
[_] Yes - Date of Submission of Prior Reporting
Information:
/ /
-------------------
[_] No
APPENDIX 1
Items Required for Defeasance Submission to Master Servicer
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following
listed items to seek the consent of Master Servicer to a defeasance of a
Mortgage Loan or an A/B Mortgage Loan that Primary Servicer is permitted to
process under this Primary Servicing Agreement.
1. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
2. An Executed Certificate substantially in the form attached hereto at
Exhibit A.
3. (i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage
Loan, and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral..
4. Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required
of the related Mortgagor under the related Loan Documents without
additional expense to Primary Servicer or Master Servicer.
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
October 1, 2006, between Primary Servicer and Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer") relating to the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
PRINCIPAL GLOBAL INVESTORS, LLC
By:
-------------------------------
Name:
Title:
APPENDIX 2
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
Page 1 of Appendix 2
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% - $
WFB, Master Serv. 10% - $
ARCap, 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)
2 of Appendix 2
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)
3 of Appendix 2
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:
ARCAP SERVICING, INC, acting solely in its
capacity as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
4 of Appendix 2
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
5 of Appendix 2
APPENDIX 3
Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission to Special Servicer
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:
1 of Appendix 3
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 of Appendix 3
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:
ARCAP SERVICING, INC., acting solely in its
capacity as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
3 of Appendix 3
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
4 of Appendix 3
APPENDIX 4
Lease Summary Submission Package
Loan # ________________________
Borrower Name:
------------------------------------------------------------------------
Property Name:
-------------------------------------------------------------------------
Total Property NRSF (Per Rent Roll):
------------------------------------------------------
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
------------------------------------------------
LEASE INFORMATION
--------------------------------------------------------------------------------
1. Parties to Lease
a. Landlord:_____________________________________________
b. Rent Commencement Date:_____________________________________________
c. Tenant:_____________________________________________________________
d. Parent Company (if applicable):_____________________________________
e. Subtenant and/or Assignee (if applicable):__________________________
f. If Yes, Is Original Tenant Liable?
(Y/N)_______________________________________________________________
g. Guarantor(s):_______________________________________________________
h. Tenant financial statements
attached:___________________________________________________________
i. If not, why:________________________________________________________
2. Basic Lease Terms
a. Lease Commencement Date:
----------------------------------------------------------------------
b. Rent Commencement Date:
----------------------------------------------------------------------
c. Lease Expiration:
-----------------------------------------------------------------------
d. Unexercised Extension Options (Y/N):
----------------------------------------------------------------
-If Yes, # of Options/Term (i.e. 1-3 yrs):
---------------------------------------------------------------
-Terms:
----------------------------------------------------------------------------
e. Lease Type (Credit/Form):
--------------------------------------------------------------------------
f. Use of Premises:
Appendix 4
--------------------------------------------------------------------------
3. Lease Economic Terms
a. Current Base Annual Rent $
--------------------------------------------------------------------------
b. Scheduled Increases Date/New Annual:
--------------------------------------------------------------------------
c. Increases/Option Periods (Date/New Annual Rent/PSF):
--------------------------------------------------------------------------
d. Percentage Rent Clause? Breakpoint:
--------------------------------------------------------------------------
e. TI Amortization Component:
--------------------------------------------------------------------------
f. Rent Concessions (enter month):
--------------------------------------------------------------------------
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes_______________________________________________________________
b. Insurance___________________________________________________________
c. Management
Fees________________________________________________________________
d. Utilities___________________________________________________________
e. Non-Structural
Maintanance/Repair__________________________________________________
f. Contract Services
--------------------------------------------------------------------
g. Administrative (% of CAM)
--------------------------------------------------------------------
h. Professional
Fees________________________________________________________________
i. CAM_________________________________________________________________
5. Options
a. Purchase Option (Note Date/Terms):
--------------------------------------------------------------------------
b. Right of First Refusal (Note Date/Terms/Reference
DOT):_______________________________________________________________
6. Other Information (Only note those that apply):
a. Expense Stop
Formula_____________________________________________________________
b. Base
Year________________________________________________________________
c. Security/Other
Deposits____________________________________________________________
d. Tenant Improvement
Allowance___________________________________________________________
-Above Standard
TI's?___________________________________________________________________________
7. Compliance
a. Lease meets all requirements of the Loan Documents. (Y/N)
If no,
specify_________________________________________________________________________
b. Landlord has complied with all leasing requirements in the Loan
Documents. (Y/N)
If no,
specify____________________________________________________________________
8. Recommendation
Request for Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Master Servicer to
the foregoing Lease Approval.
By: ___________________________________
Title: _________________________________
Date: _________________________________
Consent to Lease Approval is given:
Xxxxx Fargo Bank, National Association, acting solely in its capacity as
Master Servicer
By: _____________________________________
Title:____________________________________Date:_________________________________
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Loan Documents
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
Xxxxx Fargo Bank, National Association, as Master Servicer
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
LaSalle Bank National Association,
as Trustee
This is to notify you as to the transfer of the beneficial
interest in $_______________ of Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24, 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(4) 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]
__________________________
(4)[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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24, CLASS (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
LaSalle Bank National Association, as Trustee and Custodian
Attn: Global Securities and Trust Services
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP24
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 October 1, 2006 (the "Pooling and Servicing
Agreement") among both of you, Bear Xxxxxxx Commercial Mortgage Securities Inc.
and Xxxxx Fargo Bank, National Association, 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
Mortgage Internal Cut-Off Date
-------- -------- ------------
Loan # Loan Seller Loan ID Property Name Balance
------ ----------- ------- ------------- -------
1 MSMC LL1 US Bancorp Tower 186,550,000
2 MSMC 06-26991 000 Xxxxx Xxxxx Xxxxxx 152,500,000
3 BSCMI 47781 Dulles Executive Plaza 68,750,000
4 BSCMI 00000 X Xxxxx Xxx Xxxxx 65,000,000
5 WFB 510904729 Hilton Tapatio 55,250,000
6 MSMC 06-27339 Potomac Place Shopping Center 44,000,000
7 WFB 310904835 Xxxxxxx Station Shopping Center 41,500,000
8 BSCMI 48354 Casa Xxxxxx Hotel 40,000,000
-------- ------------ ------------- ------------------------------------ --------------------
9 BSCMI 47631 Lincoln Mall 33,835,000
-------- ------------ ------------- ------------------------------------ --------------------
10 BSCMI 00000 Xxxx Xxxxxx Xxxxxx Xxxxxx 24,000,000
-------- ------------ ------------- ------------------------------------ --------------------
11 BSCMI 48172 000 Xxxx 00xx Xxxxxx 24,000,000
-------- ------------ ------------- ------------------------------------ --------------------
12 BSCMI 00000 Xxxx Xxxxx Xxxxxxx 22,550,000
Sheraton Four Points - X'Xxxx
13 MSMC 06-27089 Airport 22,500,000
14 WFB 310904834 Xxxxxxx Station North 21,900,000
15 MSMC 06-26499 Boscovs 20,414,000
16 WFB 310902785 Union Square Building 19,637,967
17 WFB 310904548 The Southlands 17,000,000
18 BSCMI 00000 Xxxxx Xxxxx Xxxxxxx 16,000,000
19 BSCMI 46354 AMC Mesa Grand 24 15,917,806
-------- ------------ ------------- ------------------------------------ --------------------
21 MSMC 05-19982 000 Xxxxx Xxxxxx 15,000,000
-------- ------------ ------------- ------------------------------------ --------------------
20 PCF II 755244 Xxx Xxxxxxxx Center 15,000,000
-------- ------------ ------------- ------------------------------------ --------------------
22 BSCMI 46355 Rave Xxxxx 14,922,943
23 WFB 310904576 NetScout 13,464,150
00 XXX XX 000000 Xxxxxxxxxxx Xxxxxx 12,500,000
25 WFB 310904530 Mesa South Center 12,200,000
26 PCF II 755230 Riverwood Apartments 11,700,000
00 XXX XX 000000 Xxxxxx Xxxxx Apartments 11,200,000
-------- ------------ ------------- ------------------------------------ --------------------
29 WFB 610904274 City National Bank Building 11,000,000
-------- ------------ ------------- ------------------------------------ --------------------
28 PCF II 755118 Lincroft Office Center 10,976,164
-------- ------------ ------------- ------------------------------------ --------------------
30 PCF II 755259 Log Hill Run 10,700,000
31 PCF II 755095 German Hill Shopping Center 10,689,749
32 BSCMI 47795 Seminary Center 10,000,000
33 PCF II 755211 Powers Ferry Landing West 10,000,000
Burlington Coat Factory Retail
34 PCF II 755221 Center 10,000,000
35 BSCMI 46906 Xxxxxxxx Plaza 9,973,711
36 PCF II 755224 Residence Inn by Marriott 8,970,350
-------- ------------ ------------- ------------------------------------ --------------------
37 MSMC 06-26134 000 Xxxx 00xx Xxxxxx Coop 8,250,000
-------- ------------ ------------- ------------------------------------ --------------------
38 MSMC 06-26998 The Xxxxx Building 8,245,595
39 PCF II 755323 0000 Xxxxxxxxx Xxxxxx 8,100,000
40 PCF II 755260 000 Xxxxx Xxxx 7,600,000
41 WFB 310904384 Eagle Marketplace 7,600,000
42 MSMC 06-25179 Gateway Village Phase III 7,580,000
43 BSCMI 00000 Xxxxxxxx Xxxxxxxx Xxxxx 7,575,000
-------- ------------ ------------- ------------------------------------ --------------------
44 MSMC 06-24452 000 Xxxx Xxxxxx Xxxx 7,500,000
-------- ------------ ------------- ------------------------------------ --------------------
45 PCF II 755217 000 Xxxxxxx Xxx Xxxxx 6,993,585
46 MSMC 05-23646 Trail Creek Crossing 6,961,871
47 WFB 610904639 The Offices at Sweetwater 6,920,000
P & R Properties Portfolio -
-------- ------------ ------------- ------------------------------------ --------------------
48 WFB 310904609A Clinton Corners Retail 2,319,000
P & R Properties Portfolio -
-------- ------------ ------------- ------------------------------------ --------------------
49 WFB 310904609B Countryside Plaza 1,728,000
P & R Properties Portfolio -
-------- ------------ ------------- ------------------------------------ --------------------
50 WFB 310904609C Canterbury Office 1,660,000
P & R Properties Portfolio -
-------- ------------ ------------- ------------------------------------ --------------------
51 WFB 310904609D Willow Wood Office 1,168,000
-------- ------------ ------------- ------------------------------------ --------------------
52 MSMC 06-26541 Abingdon Court Townhomes 6,787,979
53 XXXX 00-00000 Xxxxx Xxxx Xxxxxx 6,700,000
54 PCF II 755210 Xxxxxxxx Industrial Building 6,500,000
55 XXXX 00-00000 Xxxxxxx Xxxxx 6,493,640
56 MSMC 06-25993 Liberty II 6,425,000
57 MSMC 06-25802 Old Lyme Marketplace 6,388,635
58 MSMC 06-25472 Washington Mutual Bank - Xxxxxx 6,300,000
59 MSMC 06-25823 Xxxxxx Loft / Office 6,294,011
60 MSMC 06-24422 Plaza Sonora 6,193,875
00 XXX XX 000000 Xxxxxxx Xxxx Crossing Shopping 6,100,000
-------- ------------ ------------- ------------------------------------ --------------------
62 MSMC 06-26886 Cheese Works New Jersey 3,681,540
-------- ------------ ------------- ------------------------------------ --------------------
63 MSMC 06-26483 Cheese Works California 2,308,762
-------- ------------ ------------- ------------------------------------ --------------------
64 BSCMI 46842 Xxxxx Xxxx Medical Office 5,983,365
Holiday Inn Presidential - Little
65 MSMC 06-24473 Rock 5,777,948
66 WFB 310904403 000 Xxxxxxxx Xxxxx 5,750,000
67 PCF II 755253 Towne Centre Village Retail Center 5,650,000
68 WFB 310904467 12885-12893 Alcosta Boulevard 5,589,738
69 MSMC 06-25841 Altmonte Apartments 5,290,673
70 BSCMI 46383 Rocky Hill 5,050,000
71 PCF II 755238 1174-1180 Andover Park West 4,995,365
72 PCF II 755162 000 Xxxx Xxxxxxxx Xxxx 4,995,210
73 WFB 310904541 North Canyons Office Park 4,993,037
Brooklyn Retail Portfolio -
-------- ------------ ------------- ------------------------------------ --------------------
74 MSMC 06-25364 000-000 0xx Xxxxxx 3,693,577
Brooklyn Retail Portfolio - 120
75 MSMC 00-00000 0xx Xxxxxx 1,297,743
-------- ------------ ------------- ------------------------------------ --------------------
76 MSMC 06-25551 Kona International 4,987,158
77 WFB 620904429 Bryman College Phoenix 4,978,093
78 WFB 410904668 College Square III 4,800,000
79 WFB 310903634 Red Mountain SS 4,795,303
80 MSMC 06-25035 West Market Center 4,788,461
00 XXX XX 000000 Xxxxxxx Xxxxxxx 4,700,000
82 WFB 620904585 Royal Freeport Business Center 4,500,000
83 WFB 310904507 Hilltop Commons 4,440,000
85 MSMC 06-26458 Yosemite Crossings 4,400,000
86 MSMC 05-22613 Fairview Milwaukee Retail Center 4,400,000
84 PCF II 755251 Carob Tree Apartments 4,400,000
87 MSMC 06-25783 Bristol House Coop 4,392,116
88 MSMC 06-25747 Vista Village Mobile Home Park 4,355,701
89 WFB 610904640 Westland Tech Center 4,305,000
X-0
00 XXX XX 000000 0000 Xxx 000 4,291,284
00 XXXX 00-00000 Xxxxxxx Xxx - Xxxx Xxxxx 4,239,409
92 BSCMI 48603 199 & 000 Xxx Xxxxxx 4,175,828
00 XXX XX 000000 Xxxxxxxxxxxx Xxxxxxxx 4,100,000
94 PCF II 755216 0000 Xxxxx Xxxxxx 4,089,562
95 WFB 410904689 Springfield Manor MHP 4,000,000
96 WFB 310904542 In-Shape Health Club 3,994,515
97 PCF II 755207 Hampton Inn - Clarksville IN 3,986,582
98 WFB 410904617 Xxxxxxxxxx Plaza Two 3,796,647
99 PCF II 755229 Jonesco Business Park 3,400,000
100 PCF II 755147 0000 X. 00xx Xxxxxx 3,396,848
101 MSMC 00-00000 Xxxxxx Xxxxxx 3,300,000
102 MSMC 06-25748 Xxxxxxxxx Villa Mobile Home Park 3,296,808
103 WFB 410904421 0000 Xxxx 000xx Xxxxxx 3,250,000
104 PCF II 755234 Oaks Auto Center 3,147,180
105 PCF II 755317 000 Xxxxxxxx Xxxxx 3,100,000
000 XXX XX 000000 Xxxxxxx Xxxxxx Shopping Center 3,000,000
107 PCF II 755261 0000 Xxxxx xxx Xxx 0,000,000
000 XXX XX 000000 361 & 000 Xxxx Xxxxxxxx Xxxx 2,997,126
109 PCF II 755257 00-000 Xxxxxxx Xxxxx 2,900,000
110 WFB 410904685 The Plaza at Royal Oaks 2,850,000
111 WFB 410904566 RitePlace Storage 2,795,216
112 MSMC 06-25513 CVS - PCH 2,794,949
113 WFB 410904500 Tractor Supply - Harrisburg, PA 2,748,000
114 WFB 410904545 Woodland Harvest Square 2,747,436
115 WFB 620904502 Parkside Cintas 2,725,593
116 WFB 620904350 Lock it Lockers 2,697,463
117 WFB 410904537 Lapeer Shopping Center 2,695,355
-------- ------------ ------------- ------------------------------------ --------------------
000 XXXXX 00000-x 000 Xxxx Xxxxxx 1,500,000
-------- ------------ ------------- ------------------------------------ --------------------
119 BSCMI 46937-b 00000 Xxxxxxxxx Xxxxxxxxx 1,195,020
-------- ------------ ------------- ------------------------------------ --------------------
120 WFB 410904396 Central Plaza (Poulsbo) 2,693,065
121 BSCMI 47333 Ukiah Tractor Supply Co. 2,600,000
122 WFB 410904302 Highlander Apartments 2,591,086
123 WFB 410904405 Safeway Sahuarita Retail Center 2,500,000
000 XXX XX 000000 Xxx Xxxx Xxxxxxx Building 2,300,000
125 WFB 410904687 Ridgewood & Sunrise MHP 2,300,000
126 MSMC 06-24645 Dunnellon Retail 2,294,375
127 WFB 410904554 000 Xxxxxxxxx Xxxx 2,242,362
128 WFB 410904107 Maple Plain Apartments 2,234,522
129 MSMC 06-26319 Social Security Building 2,225,000
130 MSMC 05-23502 The Strand Lofts 2,200,000
131 BSCMI 47963 CVS - Armenia 2,197,894
132 MSMC 06-26156 Border Patrol Station Building 2,191,102
133 WFB 620904567 Home Depot Shops 1,950,000
134 MSMC 06-25580 Tractor Supply - North Grand Avenue 1,900,000
135 WFB 410904769 Walgreen's - Oregon 1,898,130
136 PCF II 755208 00000 Xxxxxx Xxxxxx 1,867,034
137 MSMC 06-25576 Lancaster Apartments 1,675,831
000 XXX XX 000000 Xxx Xxxxxxx Xxxxxx Apartments 1,646,636
139 MSMC 00-00000 Xxxxxxxx Xxxxxx 1,597,210
J-3
140 WFB 410903984 Midlothian 7-11 1,498,716
141 WFB 410904377 0000 XX Xxxxxxxxx Xxxxxxx 1,494,962
142 WFB 410904535 Xxxxxxxx Xxxxxxxx Xxxx 0,000,000
000 XXX XX 000000 000 Xxxx Xxxx Xxxxxx 1,438,056
144 MSMC 06-25495 Woodcreek Village Apartments 1,396,373
145 PCF II 755173 CVS Drug Store Land Lease 1,394,573
146 WFB 410904460 Xxxxxxx Industrial Park 1,386,736
147 WFB 410904578 0000 Xxxx Xxxxxxxx Xxxxxx Retail 1,354,745
148 WFB 310904385 Evergreen Villa MHC 1,200,000
149 WFB 410904495 Verizon Wireless Retail Store 1,147,396
150 WFB 410904579 0000 Xxxx Xxxxxxxx Xxxxxx Retail 1,022,053
151 PCF II 755139 Xxx Supply 1,000,000
152 WFB 410904688 Cumberland MHP 1,000,000
000 XXX 000000000 Xxxxxx Xxxxxxx MHP 1,000,000
154 WFB 410904555 0000 Xxxxxx Xxxxx 999,088
155 WFB 620904664 000 Xxxxx - Xx. Xxxx 912,000
156 WFB 410904581 0000 Xxxx Xxxxxxxx Xxxxxx Retail 897,169
6430- 0000 Xxxx Xxxxxxxx Xxxxxx
000 XXX 410904580 Retail 783,274
0000-0000 Xxxx Xxxxx Xxxxxx and
158 WFB 620904066 000-000 Xxxxx Xxxxxx Xxxxxx 748,925
* DEAL FEES = PRIMARY + MASTER
J-4
EXHIBIT K-1
FORM OF PURCHASE AGREEMENT I
BSCMI MLPA
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 18, 2006
================================================================================
TABLE OF CONTENTS
-----------------
1. AGREEMENT TO PURCHASE.........................................3
2. CONVEYANCE OF MORTGAGE LOANS..................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.......13
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.......15
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER...............................................20
6. CLOSING......................................................26
7. CLOSING DOCUMENTS............................................28
8. COSTS........................................................31
9. NOTICES......................................................31
10. SEVERABILITY OF PROVISIONS...................................31
11. FURTHER ASSURANCES...........................................32
12. SURVIVAL.....................................................32
13. GOVERNING LAW................................................32
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT.................32
15. MISCELLANEOUS................................................33
16. ENTIRE AGREEMENT.............................................33
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
----------------------
Affected Loan(s)..........................22
Agreement..................................2
Certificate Purchase Agreement.............2
Certificates...............................2
Closing Date...............................3
Code.......................................2
Collateral Information....................13
Crossed Mortgage Loans............21, 22, 21
Defective Mortgage Loan...........21, 22, 21
Depositor..................................1
ERISA......................................2
Final Judicial Determination..............25
Indemnification Agreement.................17
Initial Purchasers.........................2
Master Servicer............................2
Material Breach...........................20
Material Document Defect..................20
Memorandum.................................2
MERS.......................................6
Mortgage File..............................4
Mortgage Loan Schedule.....................3
Mortgage Loans.............................2
Officer's Certificate......................9
Other Mortgage Loans.......................2
Paying Agent...............................1
Pooling and Servicing Agreement.........1, 2
Private Certificates.......................2
Prospectus Supplement......................2
Public Certificates........................2
Purchaser..................................2
Repurchased Loan..................22, 23, 22
Seller.....................................2
Settlement Date............................1
Special Servicer...........................2
Trust......................................2
Trustee....................................2
Underwriters...............................2
Underwriting Agreement.....................2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(BEAR XXXXXXX COMMERCIAL MORTGAGE, INC. LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
October 18, 2006, between Bear Xxxxxxx Commercial Mortgage, Inc. ("Seller") and
Bear Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2006 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee") and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M and Class A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated October 18, 2006 (the "Underwriting Agreement"), and the
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and
Class R-III Certificates (the "Private Certificates") will be sold by Purchaser
to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between Purchaser and
the Initial Purchasers, dated October 18, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated September 13, 2006, as supplemented by a
Prospectus Supplement dated October 18, 2006 (together, the "Prospectus
Supplement") and the Initial Purchasers will offer the Private Certificates for
sale in transactions exempt from the registration requirements of the Securities
Act of 1933 pursuant to a Private Placement Memorandum dated October 18, 2006
(the "Memorandum").
In consideration of the mutual agreements contained herein,
Seller and Purchaser hereby agree as follows:
AGREEMENT TO PURCHASE.
SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING RELEASED
BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE LOAN
SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS OCTOBER 1, 2006.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $1,534,723,955. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON OCTOBER 31, 2006 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14 HEREOF), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS
AGREEMENT (TO THE EXTENT SET FORTH IN SECTION 14 HEREOF).
CONVEYANCE OF MORTGAGE LOANS.
EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE CONSIDERATION
REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE CONDITIONS SPECIFIED
IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER, ASSIGN, SET OVER AND
OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS SPECIFICALLY PROVIDED
HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH THE UNDERSTANDING THAT
A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED OCTOBER 1, 2006, WILL BE
EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO THE MORTGAGE LOANS
IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING DATE. THE MORTGAGE
LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR PRIOR TO THE CLOSING
DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT AND THE POOLING AND
SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND ASSIGNMENT, SELLER
SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF PURCHASER, ON OR
PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN CLAUSE 2.2.1
HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH BUSINESS DAY AFTER
THE CLOSING DATE, FIVE LIMITED
3
POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE 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 SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE ARE
TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT ALL
TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES,
4
SERIES 2006-TOP24, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE
ORIGINAL MORTGAGE NOTE IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH
A COPY OF THE MORTGAGE NOTE ATTACHED THERETO;
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, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) 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;
5
AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-TOP24," PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH
ASSIGNMENTS WILL BE REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND
INSTEAD, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
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 SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY 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 (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
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 SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
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
6
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 SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP24," WHICH ASSIGNMENT MAY BE EFFECTED IN THE
RELATED ASSIGNMENT OF MORTGAGE, PROVIDED, IF THE RELATED MORTGAGE 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, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
THE ORIGINAL OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL SECURITY
FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
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 BINDING ON THE TITLE COMPANY WITH AN ORIGINAL TITLE
INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE;
(A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE MASTER SERVICER AND THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT
THE TRUSTEE IS SHOWN AS THE OWNER ON THE RECORD OF MERS;
7
COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH GROUND LEASE AND THERE IS A LIEN IN
FAVOR OF THE MORTGAGEE IN SUCH LEASE;
COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
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
PRIMARY SERVICER (OR THE MASTER SERVICER), AND APPLIED, DRAWN, REDUCED OR
RELEASED IN ACCORDANCE WITH DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE
MORTGAGE LOAN, THE POOLING AND SERVICING AGREEMENT AND THE PRIMARY SERVICING
AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD BY THE PRIMARY
SERVICER (OR THE MASTER SERVICER) ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE
HELD BY THE TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT AND THE PRIMARY SERVICING AGREEMENT (IT BEING UNDERSTOOD
THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF SUCH LETTER OF CREDIT BELONG TO
THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE CLOSING DATE, THE BANK ISSUING THE
LETTER OF CREDIT THAT THE LETTER OF CREDIT AND THE PROCEEDS THEREOF BELONG TO
THE TRUST, AND TO USE REASONABLE EFFORTS TO OBTAIN WITHIN 30 DAYS (BUT IN ANY
EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE CLOSING DATE, AN ACKNOWLEDGEMENT
THEREOF BY THE BANK (WITH A COPY OF SUCH ACKNOWLEDGEMENT TO BE SENT TO THE
TRUSTEE) OR A REISSUED LETTER OF CREDIT AND (C) TO INDEMNIFY THE TRUST FOR ANY
LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE FAILURE OF
SELLER TO ASSIGN ALL RIGHTS TO THE LETTER OF CREDIT HEREUNDER INCLUDING THE
RIGHT AND POWER TO DRAW ON THE LETTER OF CREDIT). IN THE CASE OF CLAUSE (B)
ABOVE, ANY LETTER OF CREDIT HELD BY THE PRIMARY SERVICER (OR MASTER SERVICER)
SHALL BE HELD IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE PRIMARY SERVICER
(OR MASTER SERVICER) SELLS ITS RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN,
THE PRIMARY SERVICER (OR MASTER SERVICER) HAS AGREED TO ASSIGN THE APPLICABLE
LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF THE SPECIAL SERVICER TO
SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH CASE, AT THE EXPENSE OF
THE PRIMARY SERVICER (OR MASTER SERVICER). THE PRIMARY SERVICER (OR MASTER
SERVICER) HAS AGREED TO INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE
INEFFECTIVENESS OF SUCH ASSIGNMENT;
8
THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH OTHER
MORTGAGED PROPERTIES SECURING MORTGAGE LOANS WITH A CUT-OFF DATE PRINCIPAL
BALANCE EQUAL TO OR GREATER THAN $20,000,000;
ANY ENVIRONMENTAL INSURANCE POLICY; AND
ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT;
The original of each letter of credit referred to in clause
2.2.12 above shall be delivered to the Primary Servicer, the Master Servicer or
the Trustee (as the case may be) within 45 days of the Closing Date. In
addition, a copy of any ground lease shall be delivered to the Primary Servicer
within 30 days of the Closing Date. Any failure to deliver any ground lease
shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED TO
IN SECTIONS 2.2.4 AND 2.2.6 HEREOF MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH SECTION 2.6 HEREOF, THE ASSIGNMENTS OF MORTGAGES, THE
ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN, ANY
OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3, 2.2.5
OR 2.2.6 HEREOF, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING
9
OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN DELIVERED FOR RECORDATION
WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A PHOTOCOPY THEREOF (CERTIFIED BY
THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL THEREOF SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY
PERIOD, SELLER SHALL THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE
RECORDED DOCUMENT (OR WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE
TRUSTEE MAY CONSENT TO, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG
AS SELLER IS, AS CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY,
IN GOOD FAITH ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE
SUCH ORIGINAL OR PHOTOCOPY).
THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE ON THE MORTGAGE LOANS AFTER THE CUT-OFF
DATE, ALL OTHER PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER
THAN SCHEDULED PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL
PAYMENTS OF INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON
THE CUT-OFF DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR
BEFORE THE CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO
SELLER.
WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND PURCHASER,
THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE SUBMITTED FOR
RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE FOR REAL
PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4 AND 2.2.6(II)
ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE
FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED TO IN
CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED UNRECORDED
OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER SHALL
PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT ITS OWN
EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY THE
TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS SUBCONTRACTORS
THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE DELIVERED TO
THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF THE MASTER
SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER THE CLOSING
DATE, IN ACCORDANCE WITH SECTION 3.1 OF THE PRIMARY SERVICING AGREEMENT, IF
APPLICABLE.
10
THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER (OR IN THE
ALTERNATIVE, THE PRIMARY SERVICER) SHALL INCLUDE, TO THE EXTENT REQUIRED TO BE
(AND ACTUALLY) DELIVERED TO 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
BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF CREDIT, ANY INTERCREDITOR
AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES. DELIVERY OF ANY OF THE
FOREGOING DOCUMENTS TO THE PRIMARY SERVICER SHALL BE DEEMED A DELIVERY TO THE
MASTER SERVICER AND SATISFY SELLER'S OBLIGATIONS UNDER THIS SUBPARAGRAPH.
UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS WITH RESPECT TO THE RELATED MORTGAGE
LOAN PREPARED BY OR THAT COME INTO THE POSSESSION OF SELLER SHALL IMMEDIATELY
VEST IN PURCHASER AND ITS ASSIGNS, AND SHALL BE DELIVERED PROMPTLY BY SELLER TO
OR ON BEHALF OF EITHER THE TRUSTEE OR THE MASTER SERVICER AS SET FORTH HEREIN,
SUBJECT TO THE REQUIREMENTS OF THE PRIMARY SERVICING AGREEMENT. SELLER'S AND
PURCHASER'S RECORDS SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER
TO PURCHASER AND ITS ASSIGNS AS A SALE.
IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, 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
11
THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
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 FOLLOWING PROPERTY: THE
MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE, INCLUDING THE
RELATED MORTGAGE NOTES, MORTGAGES, SECURITY AGREEMENTS, AND TITLE,
HAZARD AND OTHER INSURANCE POLICIES, ALL DISTRIBUTIONS WITH RESPECT
THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL SUBSTITUTE OR REPLACEMENT
MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT THERETO, AND THE
MORTGAGE FILES;
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 (A) ABOVE (INCLUDING ANY ACCRUED DISCOUNT
REALIZED ON LIQUIDATION OF ANY INVESTMENT PURCHASED AT A DISCOUNT); AND
ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
THE POSSESSION BY PURCHASER OR ITS DESIGNEE 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, SECTION 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
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,
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PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
SELLER 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 THIS
AGREEMENT. IN SUCH CASE, SELLER SHALL FILE 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 SUCH SECURITY INTEREST IN SUCH
PROPERTY. IN CONNECTION HEREWITH, PURCHASER 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1 HEREOF, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE
LOAN AS TO WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1)
REQUIRED TO BE DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER
PURSUANT TO THIS SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR
IS NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE
OF THE RELATED MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A
WAIVER OF SUCH OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND
ASSIGNS' RIGHTS IN RESPECT THEREOF PURSUANT TO SECTION 5 HEREOF.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
SELLER SHALL (I) DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE
ACCEPTABLE TO PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS
AS MAY BE REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR
FILES (COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS
PROPOSED TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED
13
BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE LOANS PURSUANT TO
SECTION 5 HEREOF.
ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER OR PRIMARY SERVICER, IF APPLICABLE, WITH ANY
ADDITIONAL INFORMATION IDENTIFIED BY THE MASTER SERVICER OR PRIMARY SERVICER, IF
APPLICABLE, AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT THAT
SUCH INFORMATION IS AVAILABLE.
PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE DESIGNEES
OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF THE
IDENTITY OF SUCH DESIGNEE OR AGENT.
PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT
14
ORDER TO DISCLOSE SUCH INFORMATION. IF PURCHASER IS REQUIRED TO DISCLOSE IN THE
MEMORANDUM OR THE PROSPECTUS SUPPLEMENT CONFIDENTIAL INFORMATION REGARDING
SELLER AS DESCRIBED IN THE PRECEDING SENTENCE, PURCHASER SHALL PROVIDE TO SELLER
A COPY OF THE PROPOSED FORM OF SUCH DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE
AND SELLER SHALL PROMPTLY, AND IN ANY EVENT WITHIN TWO BUSINESS DAYS, NOTIFY
PURCHASER OF ANY INACCURACIES THEREIN, IN WHICH CASE PURCHASER SHALL MODIFY SUCH
FORM IN A MANNER THAT CORRECTS SUCH INACCURACIES. IF PURCHASER IS REQUIRED BY
LAW OR COURT ORDER TO DISCLOSE CONFIDENTIAL INFORMATION REGARDING SELLER AS
DESCRIBED IN THE SECOND PRECEDING SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN AS OF
THE DATE HEREOF (OR AS OF SUCH OTHER DATE SPECIFICALLY SET FORTH IN THE
PARTICULAR REPRESENTATION AND WARRANTY) EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT AS OTHERWISE SET FORTH ON
SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER REPRESENTS, WARRANTS AND
COVENANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF PLACESTATENEW YORK. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED
BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
15
THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SECTION 4.1.3 HEREOF, ANY LAW, RULE, REGULATION, ORDER,
JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY
HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE
INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT,
16
BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE,
WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND
DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS,
OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY
MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS
SUBSTANTIALLY AS NOW CONDUCTED.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED OCTOBER 18, 2006, BETWEEN SELLER, PURCHASER,
THE UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SUBPARAGRAPH 4.1.7 SHALL RUN
EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO OTHER PARTY.
THE SELLER HAS COMPLIED WITH THE DISCLOSURE REQUIREMENTS OF REGULATION
AB THAT ARISE FROM ITS ROLE AS "ORIGINATOR" AND "SPONSOR" IN CONNECTION WITH THE
ISSUANCE OF THE PUBLIC CERTIFICATES.
FOR SO LONG AS THE TRUST IS SUBJECT TO THE REPORTING REQUIREMENTS OF THE
EXCHANGE ACT, THE SELLER SHALL PROVIDE THE PURCHASER (OR WITH RESPECT TO ANY
SERVICED COMPANION MORTGAGE LOAN THAT IS DEPOSITED INTO AN OTHER SECURITIZATION,
THE DEPOSITOR IN SUCH OTHER SECURITIZATION) AND THE PAYING AGENT WITH ANY
ADDITIONAL FORM 10-D DISCLOSURE AND ANY ADDITIONAL FORM 10-K DISCLOSURE SET
FORTH NEXT TO THE SELLER'S NAME ON SCHEDULE XV AND SCHEDULE XVI OF THE POOLING
AND SERVICING AGREEMENT WITHIN THE TIME
17
PERIODS AND IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by
Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans
and shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS AND
WARRANTS TO SELLER AS OF THE DATE HEREOF:
PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER HAS DULY AND VALIDLY
AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND HAS
DULY AND VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT. THIS AGREEMENT, ASSUMING
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER, CONSTITUTES THE VALID AND
BINDING OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME
18
OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN A BREACH OF, ANY
MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE TO WHICH PURCHASER IS A
PARTY OR THAT MAY BE APPLICABLE TO PURCHASER OR ITS ASSETS.
PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL CONDITION OF
PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF PURCHASER TO
PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser
pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE TRUSTEE
ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY OF
PURCHASER'S ASSIGNMENT OF ITS RIGHTS
19
HEREUNDER TO THE TRUSTEE, THE REPRESENTATIONS AND WARRANTIES SET FORTH ON
EXHIBIT 2 HERETO (EACH AS OF THE DATE HEREOF UNLESS OTHERWISE SPECIFIED).
IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE DELIVERED
TO THE TRUSTEE PURSUANT TO SECTION 2 HEREOF IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE THE
PARTY DISCOVERING SUCH BREACH OR DEFECT DETERMINES THAT EITHER (I) THE DEFECT OR
BREACH MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF THE HOLDERS OF THE
CERTIFICATES IN THE RELATED MORTGAGE LOAN OR (II) BOTH (A) THE DEFECT OR BREACH
MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE MORTGAGE LOAN AND (B) THE
MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR REHABILITATED MORTGAGE
LOAN (ANY SUCH DEFECT DESCRIBED IN THE PRECEDING CLAUSE (I) OR (II), A "MATERIAL
DOCUMENT DEFECT" AND ANY SUCH BREACH DESCRIBED IN THE PRECEDING CLAUSE (I) OR
(II), A "MATERIAL BREACH"), THE PARTY DETERMINING THAT SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH EXISTS SHALL PROMPTLY NOTIFY, IN WRITING, THE OTHER
PARTIES; PROVIDED THAT ANY BREACH OF THE REPRESENTATION AND WARRANTY CONTAINED
IN PARAGRAPH (41) OF SUCH EXHIBIT 2 SHALL CONSTITUTE A MATERIAL BREACH ONLY IF
SUCH PREPAYMENT PREMIUM OR YIELD MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY"
FOR COMMERCIAL MORTGAGE LOANS AS EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO
SUCH EFFECT OR (II) A DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH
PROVISION IS NOT CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS
DAYS) UPON DETERMINING (OR BECOMING AWARE OF ANOTHER PARTY'S DETERMINATION) THAT
ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH DETERMINATION
SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO EARLIER THAN THREE
BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE TO SELLER REFERRED TO BELOW), THE
MASTER SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT
LATER THAN 90 DAYS FROM 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 SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR
20
AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL DOCUMENT DEFECT,
(X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE LOAN AND A SERVICING
TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY DEFAULT OR AS DESCRIBED IN
CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF "SERVICING TRANSFER EVENT" IN THE
POOLING AND SERVICING AGREEMENT AND (Y) THE MATERIAL DOCUMENT DEFECT WAS
IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER BY THE TRUSTEE PURSUANT TO
SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT 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 SELLER PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT OR
OTHERWISE NOR POSSESSION OF SUCH CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN
AND OF ITSELF, CONSTITUTE DELIVERY OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR
KNOWLEDGE OR AWARENESS BY SELLER, THE MASTER SERVICER OR THE SPECIAL SERVICER OF
ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH CANNOT BE CORRECTED OR CURED OR SELLER OTHERWISE FAILS TO
CORRECT OR CURE WITHIN THE ABOVE CURE PERIODS, SELLER SHALL, ON OR BEFORE THE
TERMINATION OF SUCH CURE PERIODS, EITHER (I) REPURCHASE THE AFFECTED MORTGAGE
LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) FROM PURCHASER OR ITS ASSIGNEE
AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING 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 ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES 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, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
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
21
(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 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, (A)
SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE TRUSTEE AT THE EXPENSE OF
SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE TRUSTEE, IT WOULD BE USUAL
AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO OBTAIN A
NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS WOULD BE
SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE LOANS AS
TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED WITHOUT
REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE COVERAGE
RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) FOR
THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR REPLACEMENT
IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE COVERAGE RATIO
FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED LOANS(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
LOANS(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 SELLER TO (IN
WHICH CASE 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 SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER)
22
CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND PURCHASER HEREBY AGREE
TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE OTHER'S PRIMARY COLLATERAL
BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY COLLATERAL SECURING THEIR
RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO THE TRUSTEE, THE PRIMARY
COLLATERAL SECURING THE 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 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 SHALL 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 POOLING AND SERVICING
AGREEMENT TO REMOVE THE THREAT OF 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 B 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 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; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM SPECIFIED IN
PARAGRAPH 2.2.8. 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) OF THE POOLING AND SERVICING AGREEMENT, THE MASTER
SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS SECTION, INCLUDING THE
GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES HERETO AND MAKING
DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT DEFECT OR REPURCHASE OR
REPLACEMENT OF THE RELATED MORTGAGE LOAN.
23
IF 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 PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (X) THE PERIOD OF TIME
PROVIDED FOR 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, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND 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 SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION
FEE ALREADY COMPRISES A PORTION OF THE PURCHASE PRICE.
SELLER SHALL HAVE THE RIGHT TO PURCHASE CERTAIN OF THE MORTGAGE LOANS OR REO
PROPERTIES, AS APPLICABLE, IN ACCORDANCE WITH SECTION 9.36 OF THE POOLING AND
SERVICING AGREEMENT.
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 SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY (OR
INTEREST THEREIN) AT THE PURCHASE PRICE. AFTER A FINAL LIQUIDATION OF THE
MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF COMPETENT JURISDICTION ISSUES
A FINAL ORDER AFTER THE EXPIRATION OF ANY APPLICABLE APPEAL PERIOD THAT SELLER
IS OR WAS OBLIGATED TO REPURCHASE THE RELATED
24
MORTGAGE LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) (A "FINAL JUDICIAL
DETERMINATION") OR SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT
LATER THAN THE TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING
AND SERVICING AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE
DIFFERENCE BETWEEN ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN
ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING
FROM ANY SALE TO SELLER) AND THE PURCHASE PRICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
(OR INTEREST THEREIN) AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO
PROPERTY PURSUANT TO THE IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY
LIQUIDATION FEE (CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE
SPECIAL SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN
RESPECT OF SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET
FORTH ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE
OF A MORTGAGE LOAN BY SELLER.
THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE TRUST WITHIN 90 DAYS OF THE RECEIPT OF
NOTICE OF SUCH BREACH IN AN AMOUNT SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST
EXPENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE
SELLER'S SOLE
25
OBLIGATION WITH RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DETERMINATION THAT ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH
DETERMINATION SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO
EARLIER THAN THREE BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE) AND PROMPT
WRITTEN NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER OR
ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE THEREFOR,
PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE LOAN
DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT CONSTITUTES
A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE TRUSTEE SHALL
BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT SELLER SHALL BE
VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN EACH CASE
WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH MORTGAGE
LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
CLOSING.
THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX XXX, XXXXXXXXXXXXX000 THIRD AVENUE, CITYNEW YORK, STATENY
POSTALCODE10022 AT 9:00 A.M., PLACESTATENEW YORK TIME, ON THE CLOSING DATE. THE
CLOSING SHALL BE SUBJECT TO EACH OF THE FOLLOWING CONDITIONS:
ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED BY ALL SIGNATORIES AS REQUIRED PURSUANT TO
THE RESPECTIVE TERMS THEREOF.
26
SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE OBLIGATIONS
HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE MORTGAGE LOANS
ON THE CLOSING DATE.
CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE
27
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE WITH THE
SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE, PROVIDED THAT ANY
REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE SHALL BE TRUE AND
CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS COMPLIED WITH ALL
AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED
ON OR PRIOR TO THE CLOSING DATE.
TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
SELLER IS VALIDLY EXISTING UNDER PLACESTATENEW YORK LAW AND HAS FULL
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS
HAVE BEEN OBTAINED.
NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES
28
A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF SELLER, (B) TO THE KNOWLEDGE OF
SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY TERM OR PROVISION OF ANY MATERIAL
AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE, TO WHICH SELLER IS A PARTY OR BY
WHICH IT OR ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION
OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE
TERMS OF ANY SUCH INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN
PURSUANT TO THIS AGREEMENT, OR (C) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT, WRIT, INJUNCTION OR
DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER SELLER OR
ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR
(C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY
LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND
ADVERSELY AFFECT ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR
RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
29
In rendering the opinions expressed above, such counsel may
limit such opinions to matters governed by the federal laws of the United States
and the corporate laws of the State of Delaware and the State of New York, as
applicable.
SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
A "10B-5" OPINION OF COUNSEL ADDRESSED TO THE PURCHASER AND THE UNDERWRITERS, IN
FORM REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, AS TO THE
DISCLOSURE PROVIDED BY SELLER TO PURCHASER IN CONNECTION WITH THE CERTIFICATES.
AN OPINION OF COUNSEL ADDRESSED TO PURCHASER AND THE UNDERWRITERS, IN FORM
REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, THAT SUCH DISCLOSURE
COMPLIES AS TO FORM WITH THE APPLICABLE REQUIREMENTS OF REGULATION AB WITH
RESPECT TO SELLER'S ROLE AS SPONSOR (AS DEFINED IN REGULATION AB) IN CONNECTION
WITH THE CERTIFICATES.
A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
30
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx,
Senior Managing Director, Commercial Mortgage Department (with a copy to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department) (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at Bear Xxxxxxx Commercial Mortgage, Inc.,
addressed to Bear Xxxxxxx Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department (with a copy to the attention of Xxxxxx
X. Xxxxxxxxx, Xx., Managing Director, Legal Department) (or such other address
as may hereafter be furnished in writing by Seller).
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such
instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF
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THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. The rights and obligations of Seller under this
Agreement shall not be assigned by Seller without the prior written consent of
Purchaser, except that any person into which Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Seller is a party, or any person succeeding to the entire
business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof (other than
the Letter of Understanding (solely with respect to those portions of this
Agreement that are not assigned to the Trustee), the Indemnification Agreement
and the Pooling and Servicing Agreement), 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.
32
IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC.
By:_________________________________
Name:____________________________
Title:___________________________
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: ________________________________
Name:____________________________
Title:___________________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage;
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignment in favor of the Trustee shall be required but instead Seller has
agreed to take all actions as are necessary to cause the Trustee to be shown as
the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent
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instruments, establishes and creates a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable security interest in favor of the
holder thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no such assignment in favor of the
Trustee shall be required but instead Seller has agreed to take all actions as
are necessary to cause the Trustee to be shown as the owner of the related
Mortgage on the record of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real property
that are set forth on Schedule A to Exhibit 2), nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except with respect to
Mortgage Loans secured primarily by unimproved land: (i) with respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
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established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the
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holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by Seller, Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect
to the Mortgaged Properties securing the Mortgage Loans that were
the subject of an environmental site assessment within 18 months
prior to the Cut-Off Date, an environmental site assessment
prepared to ASTM standards, or an update of a previous such
report, was performed with respect to each Mortgaged Property in
connection with the origination or the sale of the related
Mortgage Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to, or on behalf of,
Purchaser or its designee, and Seller has no knowledge of any
material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws
and regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance
covering such condition was obtained or must be maintained until
the condition is remediated or (iii) the related Mortgagor was
required either to provide additional security that was deemed to
be sufficient by the originator in light of the circumstances
and/or to establish an operations and maintenance plan. Each
Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C
(the "Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on
Schedule A to this Exhibit 2, with respect to each Schedule C
Loan, (i) the Environmental Insurance Policy is in full force and
effect, (ii)(a) a property condition or engineering report was
prepared with respect to lead based paint ("LBP") and radon gas
("RG") at each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing materials
("ACM") at each related Mortgaged Property and (b) if such report
disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security, or establish with the lender
a reserve from loan
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proceeds, in an amount deemed to be sufficient by Seller for the
remediation of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after
the closing of the Mortgage Loan, (iii) on the effective date of
the Environmental Insurance Policy, Seller as originator had no
knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than the
existence of LBP, ACM or RG) that was not disclosed to the Policy
Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the
Policy Issuer or (c) an engineering or other report provided to
the Policy Issuer and (iv) the premium of any Environmental
Insurance Policy has been paid through the maturity of the
policy's term and the term of such policy extends at least five
years beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior to
the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
(i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or
local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value
of the Mortgaged Property before such Mortgaged Property could be
altered, renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or
the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such
Mortgaged Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous Materials
or environmental hazards, any noncompliance with such laws does
not have a material adverse effect on the value of such Mortgaged
Property and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C.
xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated
pursuant thereto.
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13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage to be, insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property, and the policy
contains no provisions for a deduction for depreciation; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property estimated as of the date of
origination by the originator of such Mortgage Loan consistent with its normal
commercial lending practices; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards and the Federal Emergency Management Agency requires flood insurance to
be maintained); and (d) a comprehensive general liability insurance policy in
amounts as are generally required by commercial mortgage lenders, and in any
event not less than $1 million per occurrence. Such insurance policy contains a
standard mortgagee clause that names the mortgagee as an additional insured in
the case of liability insurance policies and as a loss payee in the case of
property insurance policies and requires prior notice to the holder of the
Mortgage of termination or cancellation. No such notice has been received,
including any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance and,
upon such Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. Each Mortgage provides that casualty
insurance proceeds will be applied (a) to the restoration or repair of the
related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and
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warranty, real property taxes and assessments shall not be considered unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge,
a debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest
in the Ground Lease but not by the related fee interest in such Mortgaged
Property (the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease since
the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a
part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, and Seller has received no notice that an event of
default has occurred thereunder, and, to Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
2-7
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a
copy of such notice has been delivered to such holder and the
lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage
Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage
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Loan and either: (a) such Mortgage Loan is secured by an interest in real
property having a fair market value (i) at the date the Mortgage Loan was
originated, at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan or in connection with the defeasance provisions
of the related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related
2-9
Mortgaged Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a predetermined or objectively
determinable release price and prepayment consideration in connection therewith.
Except as described in the first sentence hereof and for those Mortgage Loans
identified on Schedule A, no Mortgage Loan permits the full or partial release
or substitution of collateral unless the mortgagee or servicer can require the
Borrower to provide an opinion of tax counsel to the effect that such release or
substitution of collateral (a) would not constitute a "significant modification"
of such Mortgage Loan within the meaning of Treas. Reg. ss.1.1001-3 and (b)
would not cause such Mortgage Loan to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
2-10
31. Actions Concerning Mortgage Loans. To the knowledge of
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all federal
and state laws applicable to the use and operation of the related Mortgaged
Property and (b) if the operator of the Mortgaged Property participates in
Medicare or Medicaid programs, the facility is in compliance in all material
respects with the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on placeCitySale. Each Mortgage Loan contains a "due on
sale" clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, or a controlling interest in the related Mortgagor, is
transferred, sold or encumbered by a junior mortgage or deed of trust; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a third
party or parties related to the Mortgagor upon the Mortgagor's satisfaction of
certain conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity
2-11
represented in the related Mortgage Loan documents, substantially to the effect
that it does not have any assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be
defeased until the date that is more than two years after the Closing Date, (ii)
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States that will provide interest and principal payments
sufficient to satisfy scheduled payments of interest and principal as required
under the related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination
of each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that
has a principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did
2-12
not as of the date of origination of the Mortgage Loan, and, to Seller's
knowledge, do not, as of the date hereof, specifically exclude Acts of Terrorism
from coverage, or if such coverage is excluded, it is covered by a separate
terrorism insurance policy. With respect to each of the Mortgage Loans, the
related Mortgage Loan documents do not expressly waive or prohibit the mortgagee
from requiring coverage for acts of terrorism or damages related thereto, except
to the extent that any right to require such coverage may be limited by
commercially reasonable availability, or as otherwise indicated on Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to Purchaser,
and Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
Schedule B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Bear Xxxxxxx Commercial Mortgage, Inc.
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 18, 2006 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) 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 following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) 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 (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this 18th day of October,
2006.
SELLER: BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By:
____________________________________
Name: _____________________________
Title: _____________________________
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:
____________________________________
Name: ______________________________
Title:______________________________
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-2
FORM OF PURCHASE AGREEMENT II
XXXXX FARGO MLPA
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 18, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE............................................3
2. CONVEYANCE OF MORTGAGE LOANS.....................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..........13
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..........15
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER..................................................20
6. CLOSING.........................................................26
7. CLOSING DOCUMENTS...............................................28
8. COSTS...........................................................31
9. NOTICES.........................................................31
10. SEVERABILITY OF PROVISIONS......................................31
11. FURTHER ASSURANCES..............................................32
12. SURVIVAL........................................................32
13. GOVERNING LAW...................................................32
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT....................32
15. MISCELLANEOUS...................................................33
16. ENTIRE AGREEMENT................................................33
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
----------------------
Affected Loan(s)..........................22
Agreement..................................2
Certificate Purchase Agreement.............2
Certificates...............................2
Closing Date...............................3
Code.......................................2
Collateral Information....................13
Crossed Mortgage Loans............21, 22, 21
Defective Mortgage Loan...........21, 22, 21
Depositor..................................1
ERISA......................................2
Final Judicial Determination..............25
Indemnification Agreement.................17
Initial Purchasers.........................2
Master Servicer............................2
Material Breach...........................20
Material Document Defect..................20
Memorandum.................................2
MERS.......................................6
Mortgage File..............................4
Mortgage Loan Schedule.....................3
Mortgage Loans.............................2
Officer's Certificate......................9
Other Mortgage Loans.......................2
Paying Agent...............................1
Pooling and Servicing Agreement.........1, 2
Private Certificates.......................2
Prospectus Supplement......................2
Public Certificates........................2
Purchaser..................................2
Repurchased Loan..................22, 23, 22
Seller.....................................2
Settlement Date............................1
Special Servicer...........................2
Trust......................................2
Trustee....................................2
Underwriters...............................2
Underwriting Agreement.....................2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(XXXXX LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
October 18, 2006, between Xxxxx Fargo Bank, National Association ("Seller") and
Bear Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2006 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee") and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M and Class A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated October 18, 2006 (the "Underwriting Agreement"), and the
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and
Class R-III Certificates (the "Private Certificates") will be sold by Purchaser
to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between Purchaser and
the Initial Purchasers, dated October 18, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated September 13, 2006, as supplemented by a
Prospectus Supplement dated October 18, 2006 (together, the "Prospectus
Supplement") and the Initial Purchasers will offer the Private Certificates for
sale in transactions exempt from the registration requirements of the Securities
Act of 1933 pursuant to a Private Placement Memorandum dated October 18, 2006
(the "Memorandum").
In consideration of the mutual agreements contained herein,
Seller and Purchaser hereby agree as follows:
AGREEMENT TO PURCHASE.
SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING RELEASED
BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE LOAN
SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS OCTOBER 1, 2006.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $1,534,723,955. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON OCTOBER 31, 2006 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14 HEREOF), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS
AGREEMENT (TO THE EXTENT SET FORTH IN SECTION 14 HEREOF).
CONVEYANCE OF MORTGAGE LOANS.
EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE CONSIDERATION
REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE CONDITIONS SPECIFIED
IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER, ASSIGN, SET OVER AND
OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS SPECIFICALLY PROVIDED
HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH THE UNDERSTANDING THAT
A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED OCTOBER 1, 2006, WILL BE
EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO THE MORTGAGE LOANS
IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING DATE. THE MORTGAGE
LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR PRIOR TO THE CLOSING
DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT AND THE POOLING AND
SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND ASSIGNMENT, SELLER
SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF PURCHASER, ON OR
PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN CLAUSE 2.2.1
HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH BUSINESS DAY AFTER
THE CLOSING DATE, FIVE LIMITED
3
POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE 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 SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE ARE
TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT ALL
TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES,
4
SERIES 2006-TOP24, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE
ORIGINAL MORTGAGE NOTE IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH
A COPY OF THE MORTGAGE NOTE ATTACHED THERETO;
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, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) 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;
5
AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-TOP24," PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH
ASSIGNMENTS WILL BE REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND
INSTEAD, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
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 SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY 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 (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
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 SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
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
6
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 SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP24," WHICH ASSIGNMENT MAY BE EFFECTED IN THE
RELATED ASSIGNMENT OF MORTGAGE, PROVIDED, IF THE RELATED MORTGAGE 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, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
THE ORIGINAL OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL SECURITY
FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
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 BINDING ON THE TITLE COMPANY WITH AN ORIGINAL TITLE
INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE;
(A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE MASTER SERVICER AND THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT
THE TRUSTEE IS SHOWN AS THE OWNER ON THE RECORD OF MERS;
7
COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH GROUND LEASE AND THERE IS A LIEN IN
FAVOR OF THE MORTGAGEE IN SUCH LEASE;
COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
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
PRIMARY SERVICER (OR THE MASTER SERVICER), AND APPLIED, DRAWN, REDUCED OR
RELEASED IN ACCORDANCE WITH DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE
MORTGAGE LOAN, THE POOLING AND SERVICING AGREEMENT AND THE PRIMARY SERVICING
AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD BY THE PRIMARY
SERVICER (OR THE MASTER SERVICER) ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE
HELD BY THE TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT AND THE PRIMARY SERVICING AGREEMENT (IT BEING UNDERSTOOD
THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF SUCH LETTER OF CREDIT BELONG TO
THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE CLOSING DATE, THE BANK ISSUING THE
LETTER OF CREDIT THAT THE LETTER OF CREDIT AND THE PROCEEDS THEREOF BELONG TO
THE TRUST, AND TO USE REASONABLE EFFORTS TO OBTAIN WITHIN 30 DAYS (BUT IN ANY
EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE CLOSING DATE, AN ACKNOWLEDGEMENT
THEREOF BY THE BANK (WITH A COPY OF SUCH ACKNOWLEDGEMENT TO BE SENT TO THE
TRUSTEE) OR A REISSUED LETTER OF CREDIT AND (C) TO INDEMNIFY THE TRUST FOR ANY
LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE FAILURE OF
SELLER TO ASSIGN ALL RIGHTS TO THE LETTER OF CREDIT HEREUNDER INCLUDING THE
RIGHT AND POWER TO DRAW ON THE LETTER OF CREDIT). IN THE CASE OF CLAUSE (B)
ABOVE, ANY LETTER OF CREDIT HELD BY THE PRIMARY SERVICER (OR MASTER SERVICER)
SHALL BE HELD IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE PRIMARY SERVICER
(OR MASTER SERVICER) SELLS ITS RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN,
THE PRIMARY SERVICER (OR MASTER SERVICER) HAS AGREED TO ASSIGN THE APPLICABLE
LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF THE SPECIAL SERVICER TO
SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH CASE, AT THE EXPENSE OF
THE PRIMARY SERVICER (OR MASTER SERVICER). THE PRIMARY SERVICER (OR MASTER
SERVICER) HAS AGREED TO INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE
INEFFECTIVENESS OF SUCH ASSIGNMENT;
8
THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH OTHER
MORTGAGED PROPERTIES SECURING MORTGAGE LOANS WITH A CUT-OFF DATE PRINCIPAL
BALANCE EQUAL TO OR GREATER THAN $20,000,000;
ANY ENVIRONMENTAL INSURANCE POLICY; AND
ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause
2.2.12 above shall be delivered to the Primary Servicer, the Master Servicer or
the Trustee (as the case may be) within 45 days of the Closing Date. In
addition, a copy of any ground lease shall be delivered to the Primary Servicer
within 30 days of the Closing Date. Any failure to deliver any ground lease
shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED TO
IN SECTIONS 2.2.4 AND 2.2.6 HEREOF MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH SECTION 2.6 HEREOF, THE ASSIGNMENTS OF MORTGAGES, THE
ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN, ANY
OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3, 2.2.5
OR 2.2.6 HEREOF, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING
9
OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN DELIVERED FOR RECORDATION
WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A PHOTOCOPY THEREOF (CERTIFIED BY
THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL THEREOF SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY
PERIOD, SELLER SHALL THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE
RECORDED DOCUMENT (OR WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE
TRUSTEE MAY CONSENT TO, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG
AS SELLER IS, AS CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY,
IN GOOD FAITH ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE
SUCH ORIGINAL OR PHOTOCOPY).
THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE ON THE MORTGAGE LOANS AFTER THE CUT-OFF
DATE, ALL OTHER PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER
THAN SCHEDULED PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL
PAYMENTS OF INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON
THE CUT-OFF DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR
BEFORE THE CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO
SELLER.
WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND PURCHASER,
THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE SUBMITTED FOR
RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE FOR REAL
PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4 AND 2.2.6(II)
ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE
FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED TO IN
SECTION 2.2.1 HEREOF. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED
UNRECORDED OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER
SHALL PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT
ITS OWN EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY
THE TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS SUBCONTRACTORS
THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE DELIVERED TO
THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF THE MASTER
SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER THE CLOSING
DATE, IN
10
ACCORDANCE WITH SECTION 3.1 OF THE PRIMARY SERVICING AGREEMENT, IF APPLICABLE.
THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER (OR IN THE
ALTERNATIVE, THE PRIMARY SERVICER) SHALL INCLUDE, TO THE EXTENT REQUIRED TO BE
(AND ACTUALLY) DELIVERED TO 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
BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF CREDIT, ANY INTERCREDITOR
AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES. DELIVERY OF ANY OF THE
FOREGOING DOCUMENTS TO THE PRIMARY SERVICER SHALL BE DEEMED A DELIVERY TO THE
MASTER SERVICER AND SATISFY SELLER'S OBLIGATIONS UNDER THIS SUBPARAGRAPH.
UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS WITH RESPECT TO THE RELATED MORTGAGE
LOAN PREPARED BY OR THAT COME INTO THE POSSESSION OF SELLER SHALL IMMEDIATELY
VEST IN PURCHASER AND ITS ASSIGNS, AND SHALL BE DELIVERED PROMPTLY BY SELLER TO
OR ON BEHALF OF EITHER THE TRUSTEE OR THE MASTER SERVICER AS SET FORTH HEREIN,
SUBJECT TO THE REQUIREMENTS OF THE PRIMARY SERVICING AGREEMENT. SELLER'S AND
PURCHASER'S RECORDS SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER
TO PURCHASER AND ITS ASSIGNS AS A SALE.
IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, 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:
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THIS AGREEMENT SHALL BE DEEMED TO BE A SECURITY AGREEMENT; AND
THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
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 FOLLOWING PROPERTY: THE
MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE, INCLUDING THE
RELATED MORTGAGE NOTES, MORTGAGES, SECURITY AGREEMENTS, AND TITLE,
HAZARD AND OTHER INSURANCE POLICIES, ALL DISTRIBUTIONS WITH RESPECT
THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL SUBSTITUTE OR REPLACEMENT
MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT THERETO, AND THE
MORTGAGE FILES;
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 (A) ABOVE (INCLUDING ANY ACCRUED DISCOUNT
REALIZED ON LIQUIDATION OF ANY INVESTMENT PURCHASED AT A DISCOUNT); AND
ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
THE POSSESSION BY PURCHASER OR ITS DESIGNEE 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, SECTION 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
NOTIFICATIONS TO PERSONS HOLDING SUCH PROPERTY, AND ACKNOWLEDGMENTS, RECEIPTS,
OR CONFIRMATIONS FROM PERSONS HOLDING
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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, PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE
PURPOSE OF PERFECTING SUCH SECURITY INTEREST UNDER APPLICABLE LAW.
SELLER 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 THIS
AGREEMENT. IN SUCH CASE, SELLER SHALL FILE 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 SUCH SECURITY INTEREST IN SUCH
PROPERTY. IN CONNECTION HEREWITH, PURCHASER 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1 HEREOF, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE
LOAN AS TO WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1)
REQUIRED TO BE DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER
PURSUANT TO THIS SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR
IS NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE
OF THE RELATED MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A
WAIVER OF SUCH OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND
ASSIGNS' RIGHTS IN RESPECT THEREOF PURSUANT TO SECTION 5 HEREOF.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
SELLER SHALL (I) DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE
ACCEPTABLE TO PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS
AS MAY BE REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR
FILES (COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS
PROPOSED TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING
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DOCUMENTATION AND MORTGAGE FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE
REVIEW OF THE MORTGAGE LOANS. THE FACT THAT PURCHASER HAS CONDUCTED OR HAS
FAILED TO CONDUCT ANY PARTIAL OR COMPLETE EXAMINATION OF THE CREDIT FILES,
UNDERWRITING DOCUMENTATION OR MORTGAGE FILES FOR THE MORTGAGE LOANS SHALL NOT
AFFECT THE RIGHT OF PURCHASER OR THE TRUSTEE TO CAUSE SELLER TO CURE ANY
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH (EACH AS DEFINED BELOW), OR TO
REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE LOANS PURSUANT TO SECTION 5 HEREOF.
ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER OR PRIMARY SERVICER, IF APPLICABLE, WITH ANY
ADDITIONAL INFORMATION IDENTIFIED BY THE MASTER SERVICER OR PRIMARY SERVICER, IF
APPLICABLE, AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT THAT
SUCH INFORMATION IS AVAILABLE.
PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE DESIGNEES
OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF THE
IDENTITY OF SUCH DESIGNEE OR AGENT.
PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER
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ANY CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION
IS REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE SUCH INFORMATION. IF
PURCHASER IS REQUIRED TO DISCLOSE IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE PRECEDING
SENTENCE, PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSED FORM OF SUCH
DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE AND SELLER SHALL PROMPTLY, AND IN ANY
EVENT WITHIN TWO BUSINESS DAYS, NOTIFY PURCHASER OF ANY INACCURACIES THEREIN, IN
WHICH CASE PURCHASER SHALL MODIFY SUCH FORM IN A MANNER THAT CORRECTS SUCH
INACCURACIES. IF PURCHASER IS REQUIRED BY LAW OR COURT ORDER TO DISCLOSE
CONFIDENTIAL INFORMATION REGARDING SELLER AS DESCRIBED IN THE SECOND PRECEDING
SENTENCE, PURCHASER SHALL NOTIFY SELLER AND COOPERATE IN SELLER'S EFFORTS TO
OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE ASSURANCE THAT CONFIDENTIAL
TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF IN THE ABSENCE OF A
PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED AS A MATTER OF LAW TO
DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO MAKING SUCH DISCLOSURE,
ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO SUCH DISCLOSURE AND THE
NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER SHALL USE REASONABLE EFFORTS
TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR. NOTWITHSTANDING THE FOREGOING, IF
REASONABLY ADVISED BY COUNSEL THAT PURCHASER IS REQUIRED BY A REGULATORY AGENCY
OR COURT ORDER TO MAKE SUCH DISCLOSURE IMMEDIATELY, THEN PURCHASER SHALL BE
PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT PRIOR REVIEW BY SELLER.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN AS OF
THE DATE HEREOF (OR AS OF SUCH OTHER DATE SPECIFICALLY SET FORTH IN THE
PARTICULAR REPRESENTATION AND WARRANTY) EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT AS OTHERWISE SET FORTH ON
SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER REPRESENTS, WARRANTS AND
COVENANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A NATIONAL BANKING
ASSOCIATION IN GOOD STANDING UNDER THE LAWS OF THE UNITED STATES. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS
15
CONTEMPLATED BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS
AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SECTION 4.1.3 HEREOF, ANY LAW, RULE, REGULATION, ORDER,
JUDGMENT,
16
WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES
CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR
CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER
OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED OCTOBER 18, 2006, BETWEEN SELLER, PURCHASER,
THE UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SUBPARAGRAPH 4.1.7 SHALL RUN
EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO OTHER PARTY.
THE SELLER HAS COMPLIED WITH THE DISCLOSURE REQUIREMENTS OF REGULATION
AB THAT ARISE FROM ITS ROLE AS "ORIGINATOR" AND "SPONSOR" IN CONNECTION WITH THE
ISSUANCE OF THE PUBLIC CERTIFICATES.
FOR SO LONG AS THE TRUST IS SUBJECT TO THE REPORTING REQUIREMENTS OF THE
EXCHANGE ACT, THE SELLER SHALL PROVIDE THE PURCHASER (OR WITH RESPECT TO ANY
SERVICED COMPANION MORTGAGE LOAN THAT IS DEPOSITED INTO AN OTHER SECURITIZATION,
THE DEPOSITOR IN SUCH OTHER SECURITIZATION) AND THE PAYING AGENT WITH ANY
17
ADDITIONAL FORM 10-D DISCLOSURE AND ANY ADDITIONAL FORM 10-K DISCLOSURE SET
FORTH NEXT TO THE SELLER'S NAME ON SCHEDULE XV AND SCHEDULE XVI OF THE POOLING
AND SERVICING AGREEMENT WITHIN THE TIME PERIODS AND IN ACCORDANCE WITH THE
PROVISIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by
Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans
and shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS AND
WARRANTS TO SELLER AS OF THE DATE HEREOF:
PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER HAS DULY AND VALIDLY
AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND HAS
DULY AND VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT. THIS AGREEMENT, ASSUMING
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER, CONSTITUTES THE VALID AND
BINDING OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
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NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER,
OR RESULT IN A BREACH OF, ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR
INDENTURE TO WHICH PURCHASER IS A PARTY OR THAT MAY BE APPLICABLE TO PURCHASER
OR ITS ASSETS.
PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL CONDITION OF
PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF PURCHASER TO
PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser
pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
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REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE TRUSTEE
ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY OF
PURCHASER'S ASSIGNMENT OF ITS RIGHTS HEREUNDER TO THE TRUSTEE, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO (EACH AS OF THE
DATE HEREOF UNLESS OTHERWISE SPECIFIED).
IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE DELIVERED
TO THE TRUSTEE PURSUANT TO SECTION 2 HEREOF IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE THE
PARTY DISCOVERING SUCH BREACH OR DEFECT DETERMINES THAT EITHER (I) THE DEFECT OR
BREACH MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF THE HOLDERS OF THE
CERTIFICATES IN THE RELATED MORTGAGE LOAN OR (II) BOTH (A) THE DEFECT OR BREACH
MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE MORTGAGE LOAN AND (B) THE
MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR REHABILITATED MORTGAGE
LOAN (ANY SUCH DEFECT DESCRIBED IN THE PRECEDING CLAUSE (I) OR (II), A "MATERIAL
DOCUMENT DEFECT" AND ANY SUCH BREACH DESCRIBED IN THE PRECEDING CLAUSE (I) OR
(II), A "MATERIAL BREACH"), THE PARTY DETERMINING THAT SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH EXISTS SHALL PROMPTLY NOTIFY, IN WRITING, THE OTHER
PARTIES; PROVIDED THAT ANY BREACH OF THE REPRESENTATION AND WARRANTY CONTAINED
IN PARAGRAPH (41) OF SUCH EXHIBIT 2 SHALL CONSTITUTE A MATERIAL BREACH ONLY IF
SUCH PREPAYMENT PREMIUM OR YIELD MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY"
FOR COMMERCIAL MORTGAGE LOANS AS EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO
SUCH EFFECT OR (II) A DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH
PROVISION IS NOT CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS
DAYS) UPON DETERMINING (OR BECOMING AWARE OF ANOTHER PARTY'S DETERMINATION) THAT
ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH DETERMINATION
SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO EARLIER THAN THREE
BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE TO SELLER REFERRED TO BELOW), THE
MASTER SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT
LATER THAN 90 DAYS FROM 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
20
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 SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL
DOCUMENT DEFECT, (X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE
LOAN AND A SERVICING TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY
DEFAULT OR AS DESCRIBED IN CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF
"SERVICING TRANSFER EVENT" IN THE POOLING AND SERVICING AGREEMENT AND (Y) THE
MATERIAL DOCUMENT DEFECT WAS IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER
BY THE TRUSTEE PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT
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 SELLER PURSUANT TO SECTION 2.2 OF THE
POOLING AND SERVICING AGREEMENT OR OTHERWISE NOR POSSESSION OF SUCH
CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN AND OF ITSELF, CONSTITUTE DELIVERY
OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR KNOWLEDGE OR AWARENESS BY SELLER,
THE MASTER SERVICER OR THE SPECIAL SERVICER OF ANY MATERIAL DOCUMENT DEFECT
LISTED THEREIN.
SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH CANNOT BE CORRECTED OR CURED OR SELLER OTHERWISE FAILS TO
CORRECT OR CURE WITHIN THE ABOVE CURE PERIODS, SELLER SHALL, ON OR BEFORE THE
TERMINATION OF SUCH CURE PERIODS, EITHER (I) REPURCHASE THE AFFECTED MORTGAGE
LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) FROM PURCHASER OR ITS ASSIGNEE
AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING 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 ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES 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, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
21
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
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, (A) SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE
TRUSTEE AT THE EXPENSE OF SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE
TRUSTEE, IT WOULD BE USUAL AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO
OBTAIN A NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS
WOULD BE SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE
LOANS AS TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED
WITHOUT REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (EXCLUDING THE AFFECTED
LOAN(S)) FOR THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR
REPLACEMENT IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE
COVERAGE RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED
LOANS(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 LOANS(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 SELLER TO (IN WHICH CASE 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
22
FORTH IN CLAUSE (II) ABOVE HAS BEEN SATISFIED, IN EACH CASE AT THE EXPENSE OF
SELLER IF THE SCOPE AND COST OF THE APPRAISAL IS APPROVED BY SELLER (SUCH
APPROVAL NOT TO BE UNREASONABLY WITHHELD).
WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER) CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND
PURCHASER HEREBY AGREE TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE
OTHER'S PRIMARY COLLATERAL BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY
COLLATERAL SECURING THEIR RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO
THE TRUSTEE, THE PRIMARY COLLATERAL SECURING THE 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 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 SHALL 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
POOLING AND SERVICING AGREEMENT TO REMOVE THE THREAT OF 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 B 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 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; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM SPECIFIED IN
23
PARAGRAPH 2.2.8. 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) OF THE POOLING AND SERVICING AGREEMENT, THE MASTER
SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS SECTION, INCLUDING THE
GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES HERETO AND MAKING
DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT DEFECT OR REPURCHASE OR
REPLACEMENT OF THE RELATED MORTGAGE LOAN.
IF 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 PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (X) THE PERIOD OF TIME
PROVIDED FOR 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, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND 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 SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION
FEE ALREADY COMPRISES A PORTION OF THE PURCHASE PRICE.
SELLER SHALL HAVE THE RIGHT TO PURCHASE CERTAIN OF THE MORTGAGE LOANS OR REO
PROPERTIES, AS APPLICABLE, IN ACCORDANCE WITH SECTION 9.36 OF THE POOLING AND
SERVICING AGREEMENT.
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 SELLER FOR
REPURCHASE OF THE REO
24
MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE MASTER SERVICER SHALL
NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT DEFECT OR MATERIAL
BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY (OR INTEREST THEREIN) AT
THE PURCHASE PRICE. AFTER A FINAL LIQUIDATION OF THE MORTGAGE LOAN OR REO
MORTGAGE LOAN, IF A COURT OF COMPETENT JURISDICTION ISSUES A FINAL ORDER AFTER
THE EXPIRATION OF ANY APPLICABLE APPEAL PERIOD THAT SELLER IS OR WAS OBLIGATED
TO REPURCHASE THE RELATED MORTGAGE LOAN OR REO MORTGAGE LOAN (OR INTEREST
THEREIN) (A "FINAL JUDICIAL DETERMINATION") OR SELLER OTHERWISE ACCEPTS
LIABILITY, THEN, BUT IN NO EVENT LATER THAN THE TERMINATION OF THE TRUST
PURSUANT TO SECTION 9.30 OF THE POOLING AND SERVICING AGREEMENT, SELLER WILL BE
OBLIGATED TO PAY TO THE TRUST THE DIFFERENCE BETWEEN ANY LIQUIDATION PROCEEDS
RECEIVED UPON SUCH LIQUIDATION IN ACCORDANCE WITH THE POOLING AND SERVICING
AGREEMENT (INCLUDING THOSE ARISING FROM ANY SALE TO SELLER) AND THE PURCHASE
PRICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
(OR INTEREST THEREIN) AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO
PROPERTY PURSUANT TO THE IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY
LIQUIDATION FEE (CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE
SPECIAL SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN
RESPECT OF SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET
FORTH ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE
OF A MORTGAGE LOAN BY SELLER.
THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN
25
EXHIBIT 2 HERETO, AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE
COSTS AND EXPENSES ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE
LOAN ARE INSUFFICIENT CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN
AN AMOUNT EQUAL TO SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH
MORTGAGOR, SELLER HEREBY COVENANTS AND AGREES TO REIMBURSE THE TRUST WITHIN 90
DAYS OF THE RECEIPT OF NOTICE OF SUCH BREACH IN AN AMOUNT SUFFICIENT TO AVOID
SUCH ADDITIONAL TRUST EXPENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUCH
REIMBURSEMENT SHALL BE SELLER'S SOLE OBLIGATION WITH RESPECT TO THE BREACH
DISCUSSED IN THE PREVIOUS SENTENCE.
THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DETERMINATION THAT ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH
DETERMINATION SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO
EARLIER THAN THREE BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE) AND PROMPT
WRITTEN NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER OR
ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE THEREFOR,
PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE LOAN
DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT CONSTITUTES
A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE TRUSTEE SHALL
BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT SELLER SHALL BE
VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN EACH CASE
WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH MORTGAGE
LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
CLOSING.
THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX XXX, XXXXXXXXXXXXX000 THIRD AVENUE, CITYNEW YORK, STATENY
POSTALCODE10022 AT 9:00 A.M., PLACESTATENEW YORK TIME, ON THE CLOSING DATE. THE
CLOSING SHALL BE SUBJECT TO EACH OF THE FOLLOWING CONDITIONS:
ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE
26
EXTENT OF THE STANDARD, IF ANY, SET FORTH IN EACH REPRESENTATION AND WARRANTY).
ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED BY ALL SIGNATORIES AS REQUIRED PURSUANT TO
THE RESPECTIVE TERMS THEREOF.
SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE OBLIGATIONS
HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE MORTGAGE LOANS
ON THE CLOSING DATE.
27
CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE COMPTROLLER OF THE CURRENCY DATED
NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
SELLER IS VALIDLY EXISTING UNDER PLACECOUNTRY-REGIONUNITED STATES LAW
AND HAS FULL CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE
28
CONSUMMATION BY SELLER OF THE TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS
AGREEMENT EXCEPT ANY APPROVALS AS HAVE BEEN OBTAINED.
NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF
SELLER, (B) TO THE KNOWLEDGE OF SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY
TERM OR PROVISION OF ANY MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE,
TO WHICH SELLER IS A PARTY OR BY WHICH IT OR ANY OF ITS ASSETS IS BOUND OR
RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON
ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH INDENTURE, MORTGAGE,
CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS AGREEMENT, OR (C)
CONFLICTS WITH OR RESULTS IN A BREACH OR VIOLATION OF ANY LAW, RULE, REGULATION,
ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF
THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT, BREACH OR
DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE, WILL NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE
CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF
SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY
ON ITS BUSINESS SUBSTANTIALLY AS NOW CONDUCTED.
TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO
29
PROVIDE INDEMNIFICATION FROM LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the
country-regionUnited States and the corporate laws of the State of StateDelaware
and the State of placeStateNew York, as applicable.
SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
A "10B-5" OPINION OF COUNSEL ADDRESSED TO THE PURCHASER AND THE UNDERWRITERS, IN
FORM REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, AS TO THE
DISCLOSURE PROVIDED BY SELLER TO PURCHASER IN CONNECTION WITH THE CERTIFICATES.
AN OPINION OF COUNSEL ADDRESSED TO PURCHASER AND THE UNDERWRITERS, IN FORM
REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, THAT SUCH DISCLOSURE
COMPLIES AS TO FORM WITH THE APPLICABLE REQUIREMENTS OF REGULATION AB WITH
RESPECT TO SELLER'S ROLE AS SPONSOR (AS DEFINED IN REGULATION AB) IN CONNECTION
WITH THE CERTIFICATES.
A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
30
AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx,
Senior Managing Director, Commercial Mortgage Department (with a copy to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department) (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at Xxxxx Fargo Bank, National Association,
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxxx (with a copy to the attention of Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo
Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx Xxxxx, XXX X0000-000, San
Francisco, California 94107) (or such other address as may hereafter be
furnished in writing by such entity).
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such
instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the
31
delivery of and payment for the Mortgage Loans and shall continue in full force
and effect, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF placeStateNEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. The rights and obligations of Seller under this
Agreement shall not be assigned by Seller without the prior written consent of
Purchaser, except that any person into which Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Seller is a party, or any person succeeding to the entire
business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof (other than
the Letter of Understanding (solely with respect to those portions of this
Agreement that are not assigned to the Trustee), the Indemnification Agreement
and the Pooling and Servicing Agreement), 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
32
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.
33
IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:
---------------------------------
Name:
----------------------------
Title:
--------------------------_
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:
---------------------------------
Name:
----------------------------
Title:
--------------------------_
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage;
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignment in favor of the Trustee shall be required but instead Seller has
agreed to take all actions as are necessary to cause the Trustee to be shown as
the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent
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instruments, establishes and creates a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable security interest in favor of the
holder thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no such assignment in favor of the
Trustee shall be required but instead Seller has agreed to take all actions as
are necessary to cause the Trustee to be shown as the owner of the related
Mortgage on the record of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. Except with respect to
Mortgage Loans secured primarily by unimproved land: (i) with respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
2-2
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the
2-3
holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with
respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-Off Date, an
environmental site assessment prepared to ASTM standards, or
an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the
origination or the sale of the related Mortgage Loan, a report
of each such assessment (or the most recent assessment with
respect to each Mortgaged Property) (an "Environmental
Report") has been delivered to, or on behalf of, Purchaser or
its designee, and Seller has no knowledge of any material and
adverse environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to
the Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance
covering such condition was obtained or must be maintained
until the condition is remediated or (iii) the related
Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of
the circumstances and/or to establish an operations and
maintenance plan. Each Mortgage Loan set forth on Schedule C
to this Exhibit 2 (each, a "Schedule C Loan") is the subject
of a Secured Creditor Impaired Property Policy, issued by the
issuer set forth on Schedule C (the "Policy Issuer") and
effective as of the date thereof (the "Environmental Insurance
Policy"). Except as set forth on Schedule A to this Exhibit 2,
with respect to each Schedule C Loan, (i) the Environmental
Insurance Policy is in full force and effect, (ii)(a) a
property condition or engineering report was prepared with
respect to lead based paint ("LBP") and radon gas ("RG") at
each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing materials
("ACM") at each related Mortgaged Property and (b) if such
report disclosed the existence of a material and adverse LBP,
ACM or RG environmental condition or circumstance
2-4
affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide
additional security, or establish with the lender a reserve
from loan proceeds, in an amount deemed to be sufficient by
Seller for the remediation of the problem and/or (B) agreed in
the Mortgage Loan documents to establish an operations and
maintenance plan after the closing of the Mortgage Loan, (iii)
on the effective date of the Environmental Insurance Policy,
Seller as originator had no knowledge of any material and
adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or
RG) that was not disclosed to the Policy Issuer in one or more
of the following: (a) the application for insurance, (b) a
borrower questionnaire that was provided to the Policy Issuer
or (c) an engineering or other report provided to the Policy
Issuer and (iv) the premium of any Environmental Insurance
Policy has been paid through the maturity of the policy's term
and the term of such policy extends at least five years beyond
the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior
to the Cut-Off Date as set forth on Schedule A to this Exhibit
2, (i) no Hazardous Material is present on such Mortgaged
Property such that (1) the value of such Mortgaged Property is
materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property before
such Mortgaged Property could be altered, renovated,
demolished or transferred or (b) the presence of such
Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material
or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and
(ii) such Mortgaged Property is in material compliance with
all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse
effect on the value of such Mortgaged Property and neither
Seller nor, to Seller's knowledge, the related Mortgagor or
any current tenant thereon, has received any notice of
violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law, ordinance, rule, regulation or
order, including without limitation, the Comprehensive
2-5
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials
Transportation Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the
Federal Water Pollution Control Act as amended (33 U.S.C. xx.xx.
1251 et seq.), the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and
any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by reason
of fire, lightning, windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
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Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest
in the Ground Lease but not by the related fee interest in such Mortgaged
Property (the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in
the event that it is so assigned, is further assignable by Purchaser
and its successors and assigns upon notice to, but without the need
to obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
2-7
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and
Seller has received no notice that an event of default has occurred
thereunder, and, to Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied
either (A) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property
in the lending area where the Mortgaged Property is located; and
such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in
a bankruptcy proceeding.
2-8
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property that served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
2-9
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan or in connection with the defeasance provisions
of the related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to
fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of
the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
2-10
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on placeCitySale. Each Mortgage Loan contains a "due on
sale" clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, or a controlling interest in the related Mortgagor, is
transferred, sold or encumbered by a junior mortgage or deed of trust; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a third
party or parties related to the Mortgagor upon the Mortgagor's satisfaction of
certain conditions precedent.
2-11
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with
a Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be
defeased until the date that is more than two years after the Closing Date, (ii)
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States that will provide interest and principal payments
sufficient to satisfy scheduled payments of interest and principal as required
under the related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
2-12
42. Terrorism Insurance. With respect to each Mortgage Loan that has
a principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
Xxxxx Fargo Loans
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxx Fargo Bank, National Association
Purchaser: Bear Xxxxxxx Commercial Mortgage
Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage
Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of October 18, 2006 (the
"Mortgage Loan Purchase Agreement"), between Seller and Purchaser and
all of the following property:
(a) 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 following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) 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 (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this 18th day of October,
2006.
SELLER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:________________________________
Name: __________________________
Title:__________________________
PURCHASER: BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:________________________________
Name:___________________________
Title:__________________________
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-3
FORM OF PURCHASE AGREEMENT III
PRINCIPAL MLPA
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
PRINCIPAL COMMERCIAL FUNDING II, LLC
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 18, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE........................................3
2. CONVEYANCE OF MORTGAGE LOANS.................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW......13
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER......15
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER..............................................20
6. CLOSING.....................................................26
7. CLOSING DOCUMENTS...........................................28
8. COSTS.......................................................31
9. NOTICES.....................................................31
10. SEVERABILITY OF PROVISIONS..................................31
11. FURTHER ASSURANCES..........................................32
12. SURVIVAL....................................................32
13. GOVERNING LAW...............................................32
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT................32
15. MISCELLANEOUS...............................................33
16. ENTIRE AGREEMENT............................................33
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
----------------------
Affected Loan(s)..........................22
Agreement..................................2
Certificate Purchase Agreement.............2
Certificates...............................2
Closing Date...............................3
Code.......................................2
Collateral Information....................13
Crossed Mortgage Loans............21, 22, 21
Defective Mortgage Loan...........21, 22, 21
Depositor..................................1
ERISA......................................2
Final Judicial Determination..............25
Indemnification Agreement.................17
Initial Purchasers.........................2
Master Servicer............................2
Material Breach...........................20
Material Document Defect..................20
Memorandum.................................2
MERS.......................................6
Mortgage File..............................4
Mortgage Loan Schedule.....................3
Mortgage Loans.............................2
Officer's Certificate......................9
Other Mortgage Loans.......................2
Paying Agent...............................1
Pooling and Servicing Agreement.........1, 2
Private Certificates.......................2
Prospectus Supplement......................2
Public Certificates........................2
Purchaser..................................2
Repurchased Loan..................22, 23, 22
Seller.....................................2
Settlement Date............................1
Special Servicer...........................2
Trust......................................2
Trustee....................................2
Underwriters...............................2
Underwriting Agreement.....................2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(PRINCIPAL LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
October 18, 2006, between Principal Commercial Funding II, LLC ("Seller") and
Bear Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2006 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee") and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M and Class A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated October 18, 2006 (the "Underwriting Agreement"), and the
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and
Class R-III Certificates (the "Private Certificates") will be sold by Purchaser
to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between Purchaser and
the Initial Purchasers, dated October 18, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated September 13, 2006, as supplemented by a
Prospectus Supplement dated October 18, 2006 (together, the "Prospectus
Supplement") and the Initial Purchasers will offer the Private Certificates for
sale in transactions exempt from the registration requirements of the Securities
Act of 1933 pursuant to a Private Placement Memorandum dated October 18, 2006
(the "Memorandum").
In consideration of the mutual agreements contained herein,
Seller and Purchaser hereby agree as follows:
AGREEMENT TO PURCHASE.
SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING RELEASED
BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE LOAN
SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS OCTOBER 1, 2006.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $1,534,723,955. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON OCTOBER 31, 2006 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14 HEREOF), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS
AGREEMENT (TO THE EXTENT SET FORTH IN SECTION 14 HEREOF).
CONVEYANCE OF MORTGAGE LOANS.
EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE CONSIDERATION
REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE CONDITIONS SPECIFIED
IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER, ASSIGN, SET OVER AND
OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS SPECIFICALLY PROVIDED
HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH THE UNDERSTANDING THAT
A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED OCTOBER 1, 2006, WILL BE
EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO THE MORTGAGE LOANS
IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING DATE. THE MORTGAGE
LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR PRIOR TO THE CLOSING
DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT AND THE POOLING AND
SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND ASSIGNMENT, SELLER
SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF PURCHASER, ON OR
PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN CLAUSE 2.2.1
HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH BUSINESS DAY AFTER
THE CLOSING DATE, FIVE LIMITED
3
POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE 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 SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE ARE
TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT ALL
TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES,
4
SERIES 2006-TOP24, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE
ORIGINAL MORTGAGE NOTE IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH
A COPY OF THE MORTGAGE NOTE ATTACHED THERETO;
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, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) 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;
5
AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-TOP24," PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH
ASSIGNMENTS WILL BE REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND
INSTEAD, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
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 SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY 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 (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
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 SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
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
6
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 SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP24," WHICH ASSIGNMENT MAY BE EFFECTED IN THE
RELATED ASSIGNMENT OF MORTGAGE, PROVIDED, IF THE RELATED MORTGAGE 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, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
THE ORIGINAL OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL SECURITY
FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
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 BINDING ON THE TITLE COMPANY WITH AN ORIGINAL TITLE
INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE;
(A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE MASTER SERVICER AND THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT
THE TRUSTEE IS SHOWN AS THE OWNER ON THE RECORD OF MERS;
7
COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH GROUND LEASE AND THERE IS A LIEN IN
FAVOR OF THE MORTGAGEE IN SUCH LEASE;
COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
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
PRIMARY SERVICER (OR THE MASTER SERVICER), AND APPLIED, DRAWN, REDUCED OR
RELEASED IN ACCORDANCE WITH DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE
MORTGAGE LOAN, THE POOLING AND SERVICING AGREEMENT AND THE PRIMARY SERVICING
AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD BY THE PRIMARY
SERVICER (OR THE MASTER SERVICER) ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE
HELD BY THE TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT AND THE PRIMARY SERVICING AGREEMENT (IT BEING UNDERSTOOD
THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF SUCH LETTER OF CREDIT BELONG TO
THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE CLOSING DATE, THE BANK ISSUING THE
LETTER OF CREDIT THAT THE LETTER OF CREDIT AND THE PROCEEDS THEREOF BELONG TO
THE TRUST, AND TO USE REASONABLE EFFORTS TO OBTAIN WITHIN 30 DAYS (BUT IN ANY
EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE CLOSING DATE, AN ACKNOWLEDGEMENT
THEREOF BY THE BANK (WITH A COPY OF SUCH ACKNOWLEDGEMENT TO BE SENT TO THE
TRUSTEE) OR A REISSUED LETTER OF CREDIT AND (C) TO INDEMNIFY THE TRUST FOR ANY
LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE FAILURE OF
SELLER TO ASSIGN ALL RIGHTS TO THE LETTER OF CREDIT HEREUNDER INCLUDING THE
RIGHT AND POWER TO DRAW ON THE LETTER OF CREDIT). IN THE CASE OF CLAUSE (B)
ABOVE, ANY LETTER OF CREDIT HELD BY THE PRIMARY SERVICER (OR MASTER SERVICER)
SHALL BE HELD IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE PRIMARY SERVICER
(OR MASTER SERVICER) SELLS ITS RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN,
THE PRIMARY SERVICER (OR MASTER SERVICER) HAS AGREED TO ASSIGN THE APPLICABLE
LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF THE SPECIAL SERVICER TO
SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH CASE, AT THE EXPENSE OF
THE PRIMARY SERVICER (OR MASTER SERVICER). THE PRIMARY SERVICER (OR MASTER
SERVICER) HAS AGREED TO INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE
INEFFECTIVENESS OF SUCH ASSIGNMENT;
8
THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH OTHER
MORTGAGED PROPERTIES SECURING MORTGAGE LOANS WITH A CUT-OFF DATE PRINCIPAL
BALANCE EQUAL TO OR GREATER THAN $20,000,000;
ANY ENVIRONMENTAL INSURANCE POLICY; AND
ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause
2.2.12 above shall be delivered to the Primary Servicer, the Master Servicer or
the Trustee (as the case may be) within 45 days of the Closing Date. In
addition, a copy of any ground lease shall be delivered to the Primary Servicer
within 30 days of the Closing Date. Any failure to deliver any ground lease
shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED TO
IN SECTIONS 2.2.4 AND 2.2.6 HEREOF MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH SECTION 2.6 HEREOF, THE ASSIGNMENTS OF MORTGAGES, THE
ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN, ANY
OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3, 2.2.5
OR 2.2.6 HEREOF, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING
9
OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN DELIVERED FOR RECORDATION
WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A PHOTOCOPY THEREOF (CERTIFIED BY
THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL THEREOF SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY
PERIOD, SELLER SHALL THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE
RECORDED DOCUMENT (OR WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE
TRUSTEE MAY CONSENT TO, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG
AS SELLER IS, AS CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY,
IN GOOD FAITH ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE
SUCH ORIGINAL OR PHOTOCOPY).
THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE ON THE MORTGAGE LOANS AFTER THE CUT-OFF
DATE, ALL OTHER PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER
THAN SCHEDULED PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL
PAYMENTS OF INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON
THE CUT-OFF DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR
BEFORE THE CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO
SELLER.
WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND PURCHASER,
THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE SUBMITTED FOR
RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE FOR REAL
PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4 AND 2.2.6(II)
ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE
FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED TO IN
CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED UNRECORDED
OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER SHALL
PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT ITS OWN
EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY THE
TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS SUBCONTRACTORS
THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE DELIVERED TO
THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF THE MASTER
SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER THE CLOSING
DATE, IN ACCORDANCE WITH SECTION 3.1 OF THE PRIMARY SERVICING AGREEMENT, IF
APPLICABLE.
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THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER (OR IN THE
ALTERNATIVE, THE PRIMARY SERVICER) SHALL INCLUDE, TO THE EXTENT REQUIRED TO BE
(AND ACTUALLY) DELIVERED TO 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
BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF CREDIT, ANY INTERCREDITOR
AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES. DELIVERY OF ANY OF THE
FOREGOING DOCUMENTS TO THE PRIMARY SERVICER SHALL BE DEEMED A DELIVERY TO THE
MASTER SERVICER AND SATISFY SELLER'S OBLIGATIONS UNDER THIS SUBPARAGRAPH.
UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS WITH RESPECT TO THE RELATED MORTGAGE
LOAN PREPARED BY OR THAT COME INTO THE POSSESSION OF SELLER SHALL IMMEDIATELY
VEST IN PURCHASER AND ITS ASSIGNS, AND SHALL BE DELIVERED PROMPTLY BY SELLER TO
OR ON BEHALF OF EITHER THE TRUSTEE OR THE MASTER SERVICER AS SET FORTH HEREIN,
SUBJECT TO THE REQUIREMENTS OF THE PRIMARY SERVICING AGREEMENT. SELLER'S AND
PURCHASER'S RECORDS SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER
TO PURCHASER AND ITS ASSIGNS AS A SALE.
IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, 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
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THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
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 FOLLOWING PROPERTY: THE
MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE, INCLUDING THE
RELATED MORTGAGE NOTES, MORTGAGES, SECURITY AGREEMENTS, AND TITLE,
HAZARD AND OTHER INSURANCE POLICIES, ALL DISTRIBUTIONS WITH RESPECT
THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL SUBSTITUTE OR REPLACEMENT
MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT THERETO, AND THE
MORTGAGE FILES;
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 (A) ABOVE (INCLUDING ANY ACCRUED DISCOUNT
REALIZED ON LIQUIDATION OF ANY INVESTMENT PURCHASED AT A DISCOUNT); AND
ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
THE POSSESSION BY PURCHASER OR ITS DESIGNEE 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, SECTION 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
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,
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PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
SELLER 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 THIS
AGREEMENT. IN SUCH CASE, SELLER SHALL FILE 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 SUCH SECURITY INTEREST IN SUCH
PROPERTY. IN CONNECTION HEREWITH, PURCHASER 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1 HEREOF, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE
LOAN AS TO WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1)
REQUIRED TO BE DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER SERVICER
PURSUANT TO THIS SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO DELIVERED, OR
IS NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, AND PURCHASER'S ACCEPTANCE
OF THE RELATED MORTGAGE LOAN ON THE CLOSING DATE SHALL IN NO WAY CONSTITUTE A
WAIVER OF SUCH OMISSION OR DEFECT OR OF PURCHASER'S OR ITS SUCCESSORS' AND
ASSIGNS' RIGHTS IN RESPECT THEREOF PURSUANT TO SECTION 5 HEREOF.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
SELLER SHALL (I) DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE
ACCEPTABLE TO PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS
AS MAY BE REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR
FILES (COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS
PROPOSED TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED
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BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE LOANS PURSUANT TO
SECTION 5 HEREOF.
ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER OR PRIMARY SERVICER, IF APPLICABLE, WITH ANY
ADDITIONAL INFORMATION IDENTIFIED BY THE MASTER SERVICER OR PRIMARY SERVICER, IF
APPLICABLE, AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT THAT
SUCH INFORMATION IS AVAILABLE.
PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE DESIGNEES
OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF THE
IDENTITY OF SUCH DESIGNEE OR AGENT.
PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT
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ORDER TO DISCLOSE SUCH INFORMATION. IF PURCHASER IS REQUIRED TO DISCLOSE IN THE
MEMORANDUM OR THE PROSPECTUS SUPPLEMENT CONFIDENTIAL INFORMATION REGARDING
SELLER AS DESCRIBED IN THE PRECEDING SENTENCE, PURCHASER SHALL PROVIDE TO SELLER
A COPY OF THE PROPOSED FORM OF SUCH DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE
AND SELLER SHALL PROMPTLY, AND IN ANY EVENT WITHIN TWO BUSINESS DAYS, NOTIFY
PURCHASER OF ANY INACCURACIES THEREIN, IN WHICH CASE PURCHASER SHALL MODIFY SUCH
FORM IN A MANNER THAT CORRECTS SUCH INACCURACIES. IF PURCHASER IS REQUIRED BY
LAW OR COURT ORDER TO DISCLOSE CONFIDENTIAL INFORMATION REGARDING SELLER AS
DESCRIBED IN THE SECOND PRECEDING SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN AS OF
THE DATE HEREOF (OR AS OF SUCH OTHER DATE SPECIFICALLY SET FORTH IN THE
PARTICULAR REPRESENTATION AND WARRANTY) EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT AS OTHERWISE SET FORTH ON
SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER REPRESENTS, WARRANTS AND
COVENANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A LIMITED LIABILITY
COMPANY IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED
BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
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THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SECTION 4.1.3 HEREOF, ANY LAW, RULE, REGULATION, ORDER,
JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY
HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE
INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT,
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BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE,
WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND
DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS,
OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY
MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS
SUBSTANTIALLY AS NOW CONDUCTED.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED OCTOBER 18, 2006, BETWEEN SELLER, PURCHASER,
THE UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SUBPARAGRAPH 4.1.7 SHALL RUN
EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO OTHER PARTY.
THE SELLER HAS COMPLIED WITH THE DISCLOSURE REQUIREMENTS OF REGULATION
AB THAT ARISE FROM ITS ROLE AS "ORIGINATOR" AND "SPONSOR" IN CONNECTION WITH THE
ISSUANCE OF THE PUBLIC CERTIFICATES.
FOR SO LONG AS THE TRUST IS SUBJECT TO THE REPORTING REQUIREMENTS OF THE
EXCHANGE ACT, THE SELLER SHALL PROVIDE THE PURCHASER (OR WITH RESPECT TO ANY
SERVICED COMPANION MORTGAGE LOAN THAT IS DEPOSITED INTO AN OTHER SECURITIZATION,
THE DEPOSITOR IN SUCH OTHER SECURITIZATION) AND THE PAYING AGENT WITH ANY
ADDITIONAL FORM 10-D DISCLOSURE AND ANY ADDITIONAL FORM 10-K DISCLOSURE SET
FORTH NEXT TO THE SELLER'S NAME ON SCHEDULE XV AND SCHEDULE XVI OF THE POOLING
AND SERVICING AGREEMENT WITHIN THE TIME
17
PERIODS AND IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by
Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans
and shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS AND
WARRANTS TO SELLER AS OF THE DATE HEREOF:
PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER HAS DULY AND VALIDLY
AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND HAS
DULY AND VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT. THIS AGREEMENT, ASSUMING
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER, CONSTITUTES THE VALID AND
BINDING OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME
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OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN A BREACH OF, ANY
MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE TO WHICH PURCHASER IS A
PARTY OR THAT MAY BE APPLICABLE TO PURCHASER OR ITS ASSETS.
PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL CONDITION OF
PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF PURCHASER TO
PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser
pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE TRUSTEE
ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY OF
PURCHASER'S ASSIGNMENT OF ITS RIGHTS
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HEREUNDER TO THE TRUSTEE, THE REPRESENTATIONS AND WARRANTIES SET FORTH ON
EXHIBIT 2 HERETO (EACH AS OF THE DATE HEREOF UNLESS OTHERWISE SPECIFIED).
IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE DELIVERED
TO THE TRUSTEE PURSUANT TO SECTION 2 HEREOF IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE THE
PARTY DISCOVERING SUCH BREACH OR DEFECT DETERMINES THAT EITHER (I) THE DEFECT OR
BREACH MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF THE HOLDERS OF THE
CERTIFICATES IN THE RELATED MORTGAGE LOAN OR (II) BOTH (A) THE DEFECT OR BREACH
MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE MORTGAGE LOAN AND (B) THE
MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR REHABILITATED MORTGAGE
LOAN (ANY SUCH DEFECT DESCRIBED IN THE PRECEDING CLAUSE (I) OR (II), A "MATERIAL
DOCUMENT DEFECT" AND ANY SUCH BREACH DESCRIBED IN THE PRECEDING CLAUSE (I) OR
(II), A "MATERIAL BREACH"), THE PARTY DETERMINING THAT SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH EXISTS SHALL PROMPTLY NOTIFY, IN WRITING, THE OTHER
PARTIES; PROVIDED THAT ANY BREACH OF THE REPRESENTATION AND WARRANTY CONTAINED
IN PARAGRAPH (41) OF SUCH EXHIBIT 2 SHALL CONSTITUTE A MATERIAL BREACH ONLY IF
SUCH PREPAYMENT PREMIUM OR YIELD MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY"
FOR COMMERCIAL MORTGAGE LOANS AS EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO
SUCH EFFECT OR (II) A DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH
PROVISION IS NOT CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS
DAYS) UPON DETERMINING (OR BECOMING AWARE OF ANOTHER PARTY'S DETERMINATION) THAT
ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH DETERMINATION
SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO EARLIER THAN THREE
BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE TO SELLER REFERRED TO BELOW), THE
MASTER SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT
LATER THAN 90 DAYS FROM 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 SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR
20
AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL
DOCUMENT DEFECT, (X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE
LOAN AND A SERVICING TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY
DEFAULT OR AS DESCRIBED IN CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF
"SERVICING TRANSFER EVENT" IN THE POOLING AND SERVICING AGREEMENT AND (Y) THE
MATERIAL DOCUMENT DEFECT WAS IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER
BY THE TRUSTEE PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT
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 SELLER PURSUANT TO SECTION 2.2 OF THE
POOLING AND SERVICING AGREEMENT OR OTHERWISE NOR POSSESSION OF SUCH
CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN AND OF ITSELF, CONSTITUTE DELIVERY
OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR KNOWLEDGE OR AWARENESS BY SELLER,
THE MASTER SERVICER OR THE SPECIAL SERVICER OF ANY MATERIAL DOCUMENT DEFECT
LISTED THEREIN.
SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH CANNOT BE CORRECTED OR CURED OR SELLER OTHERWISE FAILS TO
CORRECT OR CURE WITHIN THE ABOVE CURE PERIODS, SELLER SHALL, ON OR BEFORE THE
TERMINATION OF SUCH CURE PERIODS, EITHER (I) REPURCHASE THE AFFECTED MORTGAGE
LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) FROM PURCHASER OR ITS ASSIGNEE
AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING 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 ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES 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, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
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
21
(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 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, (A)
SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE TRUSTEE AT THE EXPENSE OF
SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE TRUSTEE, IT WOULD BE USUAL
AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO OBTAIN A
NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS WOULD BE
SATISFIED IF SELLER WERE TO REPURCHASE OR REPLACE ONLY THOSE MORTGAGE LOANS AS
TO WHICH A MATERIAL BREACH OR MATERIAL DOCUMENT DEFECT HAD OCCURRED WITHOUT
REGARD TO THIS PARAGRAPH (THE "AFFECTED LOAN(S)"): (I) THE DEBT SERVICE COVERAGE
RATIO FOR ALL SUCH CROSSED MORTGAGE LOANS (EXCLUDING THE AFFECTED LOAN(S)) FOR
THE FOUR CALENDAR QUARTERS IMMEDIATELY PRECEDING THE REPURCHASE OR REPLACEMENT
IS NOT LESS THAN THE LESSER OF (A) 0.10X BELOW THE DEBT SERVICE COVERAGE RATIO
FOR ALL SUCH CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED LOANS(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
LOANS(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 SELLER TO (IN
WHICH CASE 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 SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER)
22
CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND PURCHASER HEREBY AGREE
TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE OTHER'S PRIMARY COLLATERAL
BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY COLLATERAL SECURING THEIR
RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO THE TRUSTEE, THE PRIMARY
COLLATERAL SECURING THE 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 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 SHALL 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 POOLING AND SERVICING
AGREEMENT TO REMOVE THE THREAT OF 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 B 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 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; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM SPECIFIED IN
PARAGRAPH 2.2.8. 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) OF THE POOLING AND SERVICING AGREEMENT, THE MASTER
SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS SECTION, INCLUDING THE
GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES HERETO AND MAKING
DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT DEFECT OR REPURCHASE OR
REPLACEMENT OF THE RELATED MORTGAGE LOAN.
23
IF 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 PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (X) THE PERIOD OF TIME
PROVIDED FOR 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, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND 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 SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION
FEE ALREADY COMPRISES A PORTION OF THE PURCHASE PRICE.
SELLER SHALL HAVE THE RIGHT TO PURCHASE CERTAIN OF THE MORTGAGE LOANS OR REO
PROPERTIES, AS APPLICABLE, IN ACCORDANCE WITH SECTION 9.36 OF THE POOLING AND
SERVICING AGREEMENT.
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 SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY (OR
INTEREST THEREIN) AT THE PURCHASE PRICE. AFTER A FINAL LIQUIDATION OF THE
MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF COMPETENT JURISDICTION ISSUES
A FINAL ORDER AFTER THE EXPIRATION OF ANY APPLICABLE APPEAL PERIOD THAT SELLER
IS OR WAS OBLIGATED TO REPURCHASE THE RELATED
24
MORTGAGE LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) (A "FINAL JUDICIAL
DETERMINATION") OR SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT
LATER THAN THE TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING
AND SERVICING AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE
DIFFERENCE BETWEEN ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN
ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING
FROM ANY SALE TO SELLER) AND THE PURCHASE PRICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
(OR INTEREST THEREIN) AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO
PROPERTY PURSUANT TO THE IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY
LIQUIDATION FEE (CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE
SPECIAL SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN
RESPECT OF SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET
FORTH ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE
OF A MORTGAGE LOAN BY SELLER.
THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE TRUST WITHIN 90 DAYS OF THE RECEIPT OF
NOTICE OF SUCH BREACH IN AN AMOUNT SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST
EXPENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE
SELLER'S SOLE
25
OBLIGATION WITH RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DETERMINATION THAT ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH
DETERMINATION SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO
EARLIER THAN THREE BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE) AND PROMPT
WRITTEN NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER OR
ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE THEREFOR,
PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE LOAN
DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT CONSTITUTES
A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE TRUSTEE SHALL
BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT SELLER SHALL BE
VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN EACH CASE
WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH MORTGAGE
LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
CLOSING.
THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX LLP, 000 XXXXX XXXXXX, XXX XXXX, XX 00000 AT 9:00 A.M., NEW
YORK TIME, ON THE CLOSING DATE. THE CLOSING SHALL BE SUBJECT TO EACH OF THE
FOLLOWING CONDITIONS:
ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED BY ALL SIGNATORIES AS REQUIRED PURSUANT TO
THE RESPECTIVE TERMS THEREOF.
26
SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE OBLIGATIONS
HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE MORTGAGE LOANS
ON THE CLOSING DATE.
CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE
27
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING DATE WITH THE
SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE, PROVIDED THAT ANY
REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE SHALL BE TRUE AND
CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS COMPLIED WITH ALL
AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED
ON OR PRIOR TO THE CLOSING DATE.
TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF DELAWARE
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
SELLER IS VALIDLY EXISTING UNDER DELAWARE LAW AND HAS FULL CORPORATE OR
ORGANIZATIONAL POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS
HAVE BEEN OBTAINED.
NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES
28
A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF SELLER, (B) TO THE KNOWLEDGE OF
SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY TERM OR PROVISION OF ANY MATERIAL
AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE, TO WHICH SELLER IS A PARTY OR BY
WHICH IT OR ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION
OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE
TERMS OF ANY SUCH INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN
PURSUANT TO THIS AGREEMENT, OR (C) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT, WRIT, INJUNCTION OR
DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER SELLER OR
ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR
(C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY
LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND
ADVERSELY AFFECT ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR
RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
29
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the United States and
the corporate laws of the State of Delaware and the State of New York, as
applicable.
SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
A "10B-5" OPINION OF COUNSEL ADDRESSED TO THE PURCHASER AND THE UNDERWRITERS, IN
FORM REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, AS TO THE
DISCLOSURE PROVIDED BY SELLER TO PURCHASER IN CONNECTION WITH THE CERTIFICATES.
AN OPINION OF COUNSEL ADDRESSED TO PURCHASER AND THE UNDERWRITERS, IN FORM
REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, THAT SUCH DISCLOSURE
COMPLIES AS TO FORM WITH THE APPLICABLE REQUIREMENTS OF REGULATION AB WITH
RESPECT TO SELLER'S ROLE AS SPONSOR (AS DEFINED IN REGULATION AB) IN CONNECTION
WITH THE CERTIFICATES.
A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
30
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx,
Senior Managing Director, Commercial Mortgage Department (with a copy to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department) (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at Principal Commercial Funding II, LLC, 000
Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx (with a copy
to the attention of Xxxxxx X. Xxxxxxxxx, Esq., 000 Xxxxx Xxxxxx, Xxx Xxxxxx,
Xxxx 50392) (or such other address as may hereafter be furnished in writing by
such entity).
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such
instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS
31
OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. The rights and obligations of Seller under this
Agreement shall not be assigned by Seller without the prior written consent of
Purchaser, except that any person into which Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Seller is a party, or any person succeeding to the entire
business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof (other than
the Letter of Understanding (solely with respect to those portions of this
Agreement that are not assigned to the Trustee), the Indemnification Agreement
and the Pooling and Servicing Agreement), 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.
32
IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
PRINCIPAL COMMERCIAL FUNDING II, LLC
By:
_________________________________________
Name:____________________________________
Title:___________________________________
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By:
_________________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
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EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage;
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignment in favor of the Trustee shall be required but instead Seller has
agreed to take all actions as are necessary to cause the Trustee to be shown as
the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent
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instruments, establishes and creates a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable security interest in favor of the
holder thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no such assignment in favor of the
Trustee shall be required but instead Seller has agreed to take all actions as
are necessary to cause the Trustee to be shown as the owner of the related
Mortgage on the record of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real property
that are set forth on Schedule A to Exhibit 2), nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except with respect to
Mortgage Loans secured primarily by unimproved land: (i) with respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
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established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the
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holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by Seller, Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with
respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-Off Date, an
environmental site assessment prepared to ASTM standards,
or an update of a previous such report, was performed
with respect to each Mortgaged Property in connection
with the origination or the sale of the related Mortgage
Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged
Property) (an "Environmental Report") has been delivered
to, or on behalf of, Purchaser or its designee, and
Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report.
Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local
environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse
environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for
such condition or circumstance or (ii) environmental
insurance covering such condition was obtained or must be
maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide
additional security that was deemed to be sufficient by
the originator in light of the circumstances and/or to
establish an operations and maintenance plan. Each
Mortgage Loan set forth on Schedule C to this Exhibit 2
(each, a "Schedule C Loan") is the subject of a Secured
Creditor Impaired Property Policy, issued by the issuer
set forth on Schedule C (the "Policy Issuer") and
effective as of the date thereof (the "Environmental
Insurance Policy"). Except as set forth on Schedule A to
this Exhibit 2, with respect to each Schedule C Loan, (i)
the Environmental Insurance Policy is in full force and
effect, (ii)(a) a property condition or engineering
report was prepared with respect to lead based paint
("LBP") and radon gas ("RG") at each Mortgaged Property
that is used as a multifamily dwelling, and with respect
to asbestos containing materials ("ACM") at each related
Mortgaged Property and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance
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affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide
additional security, or establish with the lender a
reserve from loan proceeds, in an amount deemed to be
sufficient by Seller for the remediation of the problem
and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iii) on the effective date
of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM
or RG) that was not disclosed to the Policy Issuer in one
or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided
to the Policy Issuer or (c) an engineering or other
report provided to the Policy Issuer and (iv) the premium
of any Environmental Insurance Policy has been paid
through the maturity of the policy's term and the term of
such policy extends at least five years beyond the
maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an
environmental site assessment prepared to ASTM standards
within 18 months prior to the Cut-Off Date as set forth
on Schedule A to this Exhibit 2, (i) no Hazardous
Material is present on such Mortgaged Property such that
(1) the value of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal,
state or local law, (a) such Hazardous Material could be
required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property
before such Mortgaged Property could be altered,
renovated, demolished or transferred or (b) the presence
of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner
of such Mortgaged Property, or the holders of a security
interest therein, to liability for the cost of
eliminating such Hazardous Material or the hazard created
thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged
Property is in material compliance with all applicable
federal, state and local laws pertaining to Hazardous
Materials or environmental hazards, any noncompliance
with such laws does not have a material adverse effect on
the value of such Mortgaged Property and neither Seller
nor, to Seller's knowledge, the related Mortgagor or any
current tenant thereon, has received any notice of
violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive
2-5
Environmental Response, Compensation and Liability Act of 1980,
as amended (42 U.S.C. xx.xx. 9601 et seq.), the Hazardous
Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901 et
seq.), the Federal Water Pollution Control Act as amended (33
U.S.C. xx.xx. 1251 et seq.), the Clean Air Act (42 U.S.C. xx.xx.
1251 et seq.) and any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage to be, insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property, and the policy
contains no provisions for a deduction for depreciation; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property estimated as of the date of
origination by the originator of such Mortgage Loan consistent with its normal
commercial lending practices; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards and the Federal Emergency Management Agency requires flood insurance to
be maintained); and (d) a comprehensive general liability insurance policy in
amounts as are generally required by commercial mortgage lenders, and in any
event not less than $1 million per occurrence. Such insurance policy contains a
standard mortgagee clause that names the mortgagee as an additional insured in
the case of liability insurance policies and as a loss payee in the case of
property insurance policies and requires prior notice to the holder of the
Mortgage of termination or cancellation. No such notice has been received,
including any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance and,
upon such Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. Each Mortgage provides that casualty
insurance proceeds will be applied (a) to the restoration or
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repair of the related Mortgaged Property, (b) to the restoration or repair of
the related Mortgaged Property, with any excess insurance proceeds after
restoration or repair being paid to the Mortgagor, or (c) to the reduction of
the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge,
a debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest
in the Ground Lease but not by the related fee interest in such Mortgaged
Property (the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease since
the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a
part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
2-7
(iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, and Seller has received no notice that an event of
default has occurred thereunder, and, to Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a
copy of such notice has been delivered to such holder and the
lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage
Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
2-8
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (a) such Mortgage Loan is secured by an
interest in real property having a fair market value (i) at the date the
Mortgage Loan was originated, at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (ii) at the Closing Date, at least
equal to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (x) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (a)(i) and (a)(ii) of
this paragraph 19 shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans); or (b) substantially all the proceeds of such Mortgage Loan
were used to acquire, improve or protect the real property that served as the
only security for such Mortgage Loan (other than a recourse feature or other
third party credit enhancement within the meaning of Treasury Regulations
Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
2-9
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan or in connection with the defeasance provisions
of the related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to
fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of
the Code.
26. No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
2-10
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all federal
and state laws applicable to the use and operation of the related Mortgaged
Property and (b) if the operator of the Mortgaged Property participates in
Medicare or Medicaid programs, the facility is in compliance in all material
respects with the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, or a controlling interest in the related Mortgagor, is
transferred, sold or encumbered by a junior mortgage or deed of trust; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a third
party or parties related to the Mortgagor upon the Mortgagor's satisfaction of
certain conditions precedent.
2-11
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be
defeased until the date that is more than two years after the Closing Date, (ii)
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States that will provide interest and principal payments
sufficient to satisfy scheduled payments of interest and principal as required
under the related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination
of each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
2-12
42. Terrorism Insurance. With respect to each Mortgage Loan that
has a principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to Purchaser,
and Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
Principal Commercial Funding II, LLC
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Principal Commercial Funding II, LLC
Purchaser: Bear Xxxxxxx Commercial Mortgage
Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 18, 2006 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) 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 following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) 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 (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this 18th day of October,
2006.
SELLER: PRINCIPAL COMMERCIAL FUNDING II, LLC
By:____________________________________
Name: ______________________________
Title:______________________________
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
MSMC MLPA
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 18, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE.......................................3
2. CONVEYANCE OF MORTGAGE LOANS................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.....13
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.....15
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER.............................................20
6. CLOSING....................................................26
7. CLOSING DOCUMENTS..........................................28
8. COSTS......................................................31
9. NOTICES....................................................31
10. SEVERABILITY OF PROVISIONS.................................31
11. FURTHER ASSURANCES.........................................32
12. SURVIVAL...................................................32
13. GOVERNING LAW..............................................32
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT...............32
15. MISCELLANEOUS..............................................33
16. ENTIRE AGREEMENT...........................................33
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
----------------------
Affected Loan(s)..........................22
Agreement..................................2
Certificate Purchase Agreement.............2
Certificates...............................2
Closing Date...............................3
Code.......................................2
Collateral Information....................13
Crossed Mortgage Loans............21, 22, 21
Defective Mortgage Loan...........21, 22, 21
Depositor..................................1
ERISA......................................2
Final Judicial Determination..............25
Indemnification Agreement.................17
Initial Purchasers.........................2
Master Servicer............................2
Material Breach...........................20
Material Document Defect..................20
Memorandum.................................2
MERS.......................................6
Mortgage File..............................4
Mortgage Loan Schedule.....................3
Mortgage Loans.............................2
Officer's Certificate......................9
Other Mortgage Loans.......................2
Paying Agent...............................1
Pooling and Servicing Agreement.........1, 2
Private Certificates.......................2
Prospectus Supplement......................2
Public Certificates........................2
Purchaser..................................2
Repurchased Loan..................22, 23, 22
Seller.....................................2
Settlement Date............................1
Special Servicer...........................2
Trust......................................2
Trustee....................................2
Underwriters...............................2
Underwriting Agreement.....................2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of
October 18, 2006, between Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Seller") and
Bear Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2006 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee and custodian (the
"Trustee") and Xxxxx Fargo Bank, National Association, as paying agent,
certificate registrar and authenticating agent. In exchange for the Mortgage
Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-M and Class A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between Purchaser and
the Underwriters, dated October 18, 2006 (the "Underwriting Agreement"), and the
Class X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and
Class R-III Certificates (the "Private Certificates") will be sold by Purchaser
to Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc. (the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between Purchaser and
the Initial Purchasers, dated October 18, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated September 13, 2006, as supplemented by a
Prospectus Supplement dated October 18, 2006 (together, the "Prospectus
Supplement") and the Initial Purchasers will offer the Private Certificates for
sale in transactions exempt from the registration requirements of the Securities
Act of 1933 pursuant to a Private Placement Memorandum dated October 18, 2006
(the "Memorandum").
In consideration of the mutual agreements contained herein,
Seller and Purchaser hereby agree as follows:
AGREEMENT TO PURCHASE.
SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE, ON A SERVICING RELEASED
BASIS, THE MORTGAGE LOANS IDENTIFIED ON THE SCHEDULE (THE "MORTGAGE LOAN
SCHEDULE") ANNEXED HERETO AS EXHIBIT 1, AS SUCH SCHEDULE MAY BE AMENDED TO
REFLECT THE ACTUAL MORTGAGE LOANS ACCEPTED BY PURCHASER PURSUANT TO THE TERMS
HEREOF. THE CUT-OFF DATE WITH RESPECT TO THE MORTGAGE LOANS IS OCTOBER 1, 2006.
THE MORTGAGE LOANS WILL HAVE AN AGGREGATE PRINCIPAL BALANCE AS OF THE CLOSE OF
BUSINESS ON THE CUT-OFF DATE, AFTER GIVING EFFECT TO ANY PAYMENTS DUE ON OR
BEFORE SUCH DATE, WHETHER OR NOT RECEIVED, OF $1,534,723,955. THE SALE OF THE
MORTGAGE LOANS SHALL TAKE PLACE ON OCTOBER 31, 2006 OR SUCH OTHER DATE AS SHALL
BE MUTUALLY ACCEPTABLE TO THE PARTIES HERETO (THE "CLOSING DATE"). THE PURCHASE
PRICE TO BE PAID BY PURCHASER FOR THE MORTGAGE LOANS SHALL EQUAL THE AMOUNT SET
FORTH AS SUCH PURCHASE PRICE ON EXHIBIT 3 HERETO. THE PURCHASE PRICE SHALL BE
PAID TO SELLER BY WIRE TRANSFER IN IMMEDIATELY AVAILABLE FUNDS ON THE CLOSING
DATE.
ON THE CLOSING DATE, PURCHASER WILL ASSIGN TO THE TRUSTEE PURSUANT TO THE
POOLING AND SERVICING AGREEMENT ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO
THE MORTGAGE LOANS AND ITS RIGHTS UNDER THIS AGREEMENT (TO THE EXTENT SET FORTH
IN SECTION 14 HEREOF), AND THE TRUSTEE SHALL SUCCEED TO SUCH RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS AND PURCHASER'S RIGHTS UNDER THIS
AGREEMENT (TO THE EXTENT SET FORTH IN SECTION 14 HEREOF).
CONVEYANCE OF MORTGAGE LOANS.
EFFECTIVE AS OF THE CLOSING DATE, SUBJECT ONLY TO RECEIPT OF THE CONSIDERATION
REFERRED TO IN SECTION 1 HEREOF AND THE SATISFACTION OF THE CONDITIONS SPECIFIED
IN SECTIONS 6 AND 7 HEREOF, SELLER DOES HEREBY TRANSFER, ASSIGN, SET OVER AND
OTHERWISE CONVEY TO PURCHASER, WITHOUT RECOURSE, EXCEPT AS SPECIFICALLY PROVIDED
HEREIN ALL THE RIGHT, TITLE AND INTEREST OF SELLER, WITH THE UNDERSTANDING THAT
A SERVICING RIGHTS PURCHASE AND SALE AGREEMENT, DATED OCTOBER 1, 2006, WILL BE
EXECUTED BY SELLER AND THE MASTER SERVICER, IN AND TO THE MORTGAGE LOANS
IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE AS OF THE CLOSING DATE. THE MORTGAGE
LOAN SCHEDULE, AS IT MAY BE AMENDED FROM TIME TO TIME ON OR PRIOR TO THE CLOSING
DATE, SHALL CONFORM TO THE REQUIREMENTS OF THIS AGREEMENT AND THE POOLING AND
SERVICING AGREEMENT. IN CONNECTION WITH SUCH TRANSFER AND ASSIGNMENT, SELLER
SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE, ON BEHALF OF PURCHASER, ON OR
PRIOR TO THE CLOSING DATE, THE MORTGAGE NOTE (AS DESCRIBED IN CLAUSE 2.2.1
HEREOF) FOR EACH MORTGAGE LOAN AND ON OR PRIOR TO THE FIFTH BUSINESS DAY AFTER
THE CLOSING DATE, FIVE LIMITED
3
POWERS OF ATTORNEY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT 5 IN
FAVOR OF THE TRUSTEE AND THE SPECIAL SERVICER TO EMPOWER THE TRUSTEE AND, IN THE
EVENT OF THE FAILURE OR INCAPACITY OF THE TRUSTEE, THE SPECIAL SERVICER, TO
SUBMIT FOR RECORDING, AT THE EXPENSE OF SELLER, ANY MORTGAGE LOAN DOCUMENTS
REQUIRED TO BE RECORDED AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT AND
ANY INTERVENING ASSIGNMENTS WITH EVIDENCE OF RECORDING THEREON THAT ARE REQUIRED
TO BE INCLUDED IN THE MORTGAGE FILES (SO LONG AS ORIGINAL COUNTERPARTS HAVE
PREVIOUSLY BEEN DELIVERED TO THE TRUSTEE). SELLER AGREES TO REASONABLY COOPERATE
WITH THE TRUSTEE AND THE SPECIAL SERVICER IN CONNECTION WITH ANY ADDITIONAL
POWERS OF ATTORNEY OR REVISIONS THERETO THAT ARE REQUESTED BY SUCH PARTIES FOR
PURPOSES OF SUCH RECORDATION. THE PARTIES HERETO AGREE 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 SELLER, BUT IN NO EVENT
EARLIER THAN 18 MONTHS FROM THE CLOSING DATE, AND (II) THE DATE (IF ANY) ON
WHICH SUCH MORTGAGE LOAN BECOMES A SPECIALLY SERVICED MORTGAGE LOAN. THE TRUSTEE
SHALL SUBMIT SUCH DOCUMENTS, AT SELLER'S EXPENSE, AFTER THE PERIODS SET FORTH
ABOVE, PROVIDED, HOWEVER, THE TRUSTEE SHALL NOT SUBMIT SUCH ASSIGNMENTS FOR
RECORDING IF SELLER PRODUCES EVIDENCE THAT IT HAS SENT ANY SUCH ASSIGNMENT FOR
RECORDING AND CERTIFIES THAT SELLER IS AWAITING ITS RETURN FROM THE APPLICABLE
RECORDING OFFICE. IN ADDITION, NOT LATER THAN THE 30TH DAY FOLLOWING THE CLOSING
DATE, SELLER SHALL DELIVER TO OR ON BEHALF OF THE TRUSTEE EACH OF THE REMAINING
DOCUMENTS OR INSTRUMENTS SPECIFIED IN SECTION 2.2 HEREOF (WITH SUCH EXCEPTIONS
AS ARE PERMITTED BY THIS SECTION 2) WITH RESPECT TO EACH MORTGAGE LOAN (EACH, A
"MORTGAGE FILE"). (SELLER ACKNOWLEDGES THAT THE TERM "WITHOUT RECOURSE" DOES NOT
MODIFY THE DUTIES OF SELLER UNDER SECTION 5 HEREOF.)
ALL MORTGAGE FILES, OR PORTIONS THEREOF, DELIVERED PRIOR TO THE CLOSING DATE ARE
TO BE HELD BY OR ON BEHALF OF THE TRUSTEE IN ESCROW ON BEHALF OF SELLER AT ALL
TIMES PRIOR TO THE CLOSING DATE. THE MORTGAGE FILES SHALL BE RELEASED FROM
ESCROW UPON CLOSING OF THE SALE OF THE MORTGAGE LOANS AND PAYMENTS OF THE
PURCHASE PRICE THEREFOR AS CONTEMPLATED HEREBY. THE MORTGAGE FILE FOR EACH
MORTGAGE LOAN SHALL CONTAIN THE FOLLOWING DOCUMENTS:
THE ORIGINAL MORTGAGE NOTE BEARING ALL INTERVENING ENDORSEMENTS,
ENDORSED "PAY TO THE ORDER OF LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES,
4
SERIES 2006-TOP24, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY" OR IF THE
ORIGINAL MORTGAGE NOTE IS NOT INCLUDED THEREIN, THEN A LOST NOTE AFFIDAVIT, WITH
A COPY OF THE MORTGAGE NOTE ATTACHED THERETO;
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, SELLER SHALL DELIVER OR CAUSE
TO BE DELIVERED TO THE TRUSTEE A TRUE AND CORRECT COPY OF SUCH MORTGAGE,
TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE,
AN OFFICER'S CERTIFICATE (AS DEFINED BELOW) OF SELLER STATING THAT SUCH ORIGINAL
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
THE ORIGINALS OF ALL AGREEMENTS MODIFYING A MONEY TERM OR OTHER MATERIAL
MODIFICATION, CONSOLIDATION AND EXTENSION AGREEMENTS, IF ANY, WITH EVIDENCE OF
RECORDING THEREON, OR IF ANY SUCH ORIGINAL MODIFICATION, CONSOLIDATION OR
EXTENSION AGREEMENT HAS BEEN DELIVERED TO THE APPROPRIATE RECORDING OFFICE FOR
RECORDATION AND EITHER HAS NOT YET BEEN RETURNED ON OR PRIOR TO THE 45TH DAY
FOLLOWING THE CLOSING DATE WITH EVIDENCE OF RECORDATION THEREON OR HAS BEEN LOST
AFTER RECORDATION, A TRUE COPY OF SUCH MODIFICATION, CONSOLIDATION OR EXTENSION
CERTIFIED BY SELLER TOGETHER WITH (I) IN THE CASE OF A DELAY CAUSED BY THE
PUBLIC RECORDING OFFICE, AN OFFICER'S CERTIFICATE OF SELLER STATING THAT SUCH
ORIGINAL MODIFICATION, CONSOLIDATION OR EXTENSION AGREEMENT HAS BEEN DISPATCHED
OR SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR RECORDATION OR (II) 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;
5
AN ORIGINAL ASSIGNMENT OF MORTGAGE FOR EACH MORTGAGE LOAN, IN FORM AND
SUBSTANCE ACCEPTABLE FOR RECORDING, SIGNED BY THE HOLDER OF RECORD IN FAVOR OF
"LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-TOP24," PROVIDED, IF THE RELATED MORTGAGE HAS BEEN RECORDED IN THE NAME OF
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ("MERS") OR ITS DESIGNEE, NO SUCH
ASSIGNMENTS WILL BE REQUIRED TO BE SUBMITTED FOR RECORDING OR FILING AND
INSTEAD, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
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 SELLER, OR IN THE CASE OF AN ORIGINAL BLANKET INTERVENING ASSIGNMENT OF
MORTGAGE RETAINED BY SELLER, A COPY THEREOF CERTIFIED BY 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 (I) IN
THE CASE OF A DELAY CAUSED BY THE PUBLIC RECORDING OFFICE, AN OFFICER'S
CERTIFICATE OF SELLER STATING THAT SUCH ORIGINAL INTERVENING ASSIGNMENT OF
MORTGAGE HAS BEEN SENT TO THE APPROPRIATE PUBLIC RECORDING OFFICIAL FOR
RECORDATION OR (II) 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;
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 SELLER TO BE A TRUE AND COMPLETE COPY
OF THE ORIGINAL ASSIGNMENT OF LEASES SUBMITTED FOR RECORDING, TOGETHER WITH (I)
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
6
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 SELLER TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL ASSIGNMENT SUBMITTED FOR RECORDING, AND (II) AN ORIGINAL ASSIGNMENT OF
SUCH ASSIGNMENT OF LEASES, IN RECORDABLE FORM, SIGNED BY THE HOLDER OF RECORD IN
FAVOR OF "LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP24," WHICH ASSIGNMENT MAY BE EFFECTED IN THE
RELATED ASSIGNMENT OF MORTGAGE, PROVIDED, IF THE RELATED MORTGAGE 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, SELLER SHALL TAKE ALL ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO
BE SHOWN AS THE OWNER OF THE RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES
OF THE SYSTEM OF RECORDING TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES
MAINTAINED BY MERS AND SHALL DELIVER TO THE MASTER SERVICER AND THE SPECIAL
SERVICER EVIDENCE CONFIRMING THAT THE TRUSTEE IS SHOWN AS THE OWNER ON THE
RECORD OF MERS;
THE ORIGINAL OF EACH GUARANTY, IF ANY, CONSTITUTING ADDITIONAL SECURITY
FOR THE REPAYMENT OF SUCH MORTGAGE LOAN;
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 BINDING ON THE TITLE COMPANY WITH AN ORIGINAL TITLE
INSURANCE POLICY TO FOLLOW WITHIN 180 DAYS OF THE CLOSING DATE;
(A) UCC FINANCING STATEMENTS (TOGETHER WITH ALL ASSIGNMENTS THEREOF) AND
(B) UCC-2 OR UCC-3 FINANCING STATEMENTS TO THE TRUSTEE EXECUTED AND DELIVERED IN
CONNECTION WITH THE MORTGAGE LOAN, PROVIDED, IF THE RELATED MORTGAGE HAS BEEN
RECORDED IN THE NAME OF MERS OR ITS DESIGNEE, NO SUCH FINANCING STATEMENTS WILL
BE REQUIRED TO BE RECORDED OR DELIVERED AND INSTEAD, SELLER SHALL TAKE ALL
ACTIONS AS ARE NECESSARY TO CAUSE THE TRUSTEE TO BE SHOWN AS THE OWNER OF THE
RELATED MORTGAGE ON THE RECORD OF MERS FOR PURPOSES OF THE SYSTEM OF RECORDING
TRANSFERS OF BENEFICIAL OWNERSHIP OF MORTGAGES MAINTAINED BY MERS AND SHALL
DELIVER TO THE MASTER SERVICER AND THE SPECIAL SERVICER EVIDENCE CONFIRMING THAT
THE TRUSTEE IS SHOWN AS THE OWNER ON THE RECORD OF MERS;
7
COPIES OF THE RELATED GROUND LEASE(S), IF ANY, TO ANY MORTGAGE LOAN
WHERE THE MORTGAGOR IS THE LESSEE UNDER SUCH GROUND LEASE AND THERE IS A LIEN IN
FAVOR OF THE MORTGAGEE IN SUCH LEASE;
COPIES OF ANY LOAN AGREEMENTS, LOCK-BOX AGREEMENTS AND INTERCREDITOR
AGREEMENTS (INCLUDING, WITHOUT LIMITATION, ANY INTERCREDITOR AGREEMENT, AND A
COPY (THAT IS, NOT THE ORIGINAL) OF THE MORTGAGE NOTE EVIDENCING THE RELATED B
NOTE), IF ANY, RELATED TO ANY MORTGAGE LOAN;
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
PRIMARY SERVICER (OR THE MASTER SERVICER), AND APPLIED, DRAWN, REDUCED OR
RELEASED IN ACCORDANCE WITH DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE
MORTGAGE LOAN, THE POOLING AND SERVICING AGREEMENT AND THE PRIMARY SERVICING
AGREEMENT OR (B) THE ORIGINAL OF EACH LETTER OF CREDIT, IF ANY, CONSTITUTING
ADDITIONAL COLLATERAL FOR SUCH MORTGAGE LOAN, WHICH SHALL BE HELD BY THE PRIMARY
SERVICER (OR THE MASTER SERVICER) ON BEHALF OF THE TRUSTEE, WITH A COPY TO BE
HELD BY THE TRUSTEE, AND APPLIED, DRAWN, REDUCED OR RELEASED IN ACCORDANCE WITH
DOCUMENTS EVIDENCING OR SECURING THE APPLICABLE MORTGAGE LOAN, THE POOLING AND
SERVICING AGREEMENT AND THE PRIMARY SERVICING AGREEMENT (IT BEING UNDERSTOOD
THAT SELLER HAS AGREED (A) THAT THE PROCEEDS OF SUCH LETTER OF CREDIT BELONG TO
THE TRUST, (B) TO NOTIFY, ON OR BEFORE THE CLOSING DATE, THE BANK ISSUING THE
LETTER OF CREDIT THAT THE LETTER OF CREDIT AND THE PROCEEDS THEREOF BELONG TO
THE TRUST, AND TO USE REASONABLE EFFORTS TO OBTAIN WITHIN 30 DAYS (BUT IN ANY
EVENT TO OBTAIN WITHIN 90 DAYS) FOLLOWING THE CLOSING DATE, AN ACKNOWLEDGEMENT
THEREOF BY THE BANK (WITH A COPY OF SUCH ACKNOWLEDGEMENT TO BE SENT TO THE
TRUSTEE) OR A REISSUED LETTER OF CREDIT AND (C) TO INDEMNIFY THE TRUST FOR ANY
LIABILITIES, CHARGES, COSTS, FEES OR OTHER EXPENSES ACCRUING FROM THE FAILURE OF
SELLER TO ASSIGN ALL RIGHTS TO THE LETTER OF CREDIT HEREUNDER INCLUDING THE
RIGHT AND POWER TO DRAW ON THE LETTER OF CREDIT). IN THE CASE OF CLAUSE (B)
ABOVE, ANY LETTER OF CREDIT HELD BY THE PRIMARY SERVICER (OR MASTER SERVICER)
SHALL BE HELD IN ITS CAPACITY AS AGENT OF THE TRUST, AND IF THE PRIMARY SERVICER
(OR MASTER SERVICER) SELLS ITS RIGHTS TO SERVICE THE APPLICABLE MORTGAGE LOAN,
THE PRIMARY SERVICER (OR MASTER SERVICER) HAS AGREED TO ASSIGN THE APPLICABLE
LETTER OF CREDIT TO THE TRUST OR AT THE DIRECTION OF THE SPECIAL SERVICER TO
SUCH PARTY AS THE SPECIAL SERVICER MAY INSTRUCT, IN EACH CASE, AT THE EXPENSE OF
THE PRIMARY SERVICER (OR MASTER SERVICER). THE PRIMARY SERVICER (OR MASTER
SERVICER) HAS AGREED TO INDEMNIFY THE TRUST FOR ANY LOSS CAUSED BY THE
INEFFECTIVENESS OF SUCH ASSIGNMENT;
8
THE ORIGINAL ENVIRONMENTAL INDEMNITY AGREEMENT, IF ANY, RELATED TO ANY
MORTGAGE LOAN;
THIRD-PARTY MANAGEMENT AGREEMENTS FOR ALL HOTELS AND FOR SUCH OTHER
MORTGAGED PROPERTIES SECURING MORTGAGE LOANS WITH A CUT-OFF DATE PRINCIPAL
BALANCE EQUAL TO OR GREATER THAN $20,000,000;
ANY ENVIRONMENTAL INSURANCE POLICY; AND
ANY AFFIDAVIT AND INDEMNIFICATION AGREEMENT.
The original of each letter of credit referred to in clause
2.2.12 above shall be delivered to the Primary Servicer, the Master Servicer or
the Trustee (as the case may be) within 45 days of the Closing Date. In
addition, a copy of any ground lease shall be delivered to the Primary Servicer
within 30 days of the Closing Date. Any failure to deliver any ground lease
shall constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
THE ASSIGNMENTS OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES REFERRED TO
IN SECTIONS 2.2.4 AND 2.2.6 HEREOF MAY BE IN THE FORM OF A SINGLE INSTRUMENT
ASSIGNING THE MORTGAGE AND THE ASSIGNMENT OF LEASES TO THE EXTENT PERMITTED BY
APPLICABLE LAW. TO AVOID THE UNNECESSARY EXPENSE AND ADMINISTRATIVE
INCONVENIENCE ASSOCIATED WITH THE EXECUTION AND RECORDING OR FILING OF MULTIPLE
ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE
MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING STATEMENTS, SELLER SHALL EXECUTE, IN
ACCORDANCE WITH SECTION 2.6 HEREOF, THE ASSIGNMENTS OF MORTGAGES, THE
ASSIGNMENTS OF LEASES (TO THE EXTENT SEPARATE FROM THE MORTGAGES) AND THE
ASSIGNMENTS OF UCC FINANCING STATEMENTS RELATING TO THE MORTGAGE LOANS NAMING
THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS ASSIGNEE. NOTWITHSTANDING THE
FACT THAT SUCH ASSIGNMENTS OF MORTGAGES, ASSIGNMENTS OF LEASES (TO THE EXTENT
SEPARATE FROM THE ASSIGNMENTS OF MORTGAGES) AND ASSIGNMENTS OF UCC FINANCING
STATEMENTS SHALL NAME THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS AS THE
ASSIGNEE, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE MORTGAGE LOANS SHALL
FOR ALL PURPOSES BE DEEMED TO HAVE BEEN TRANSFERRED FROM SELLER TO PURCHASER AND
FROM PURCHASER TO THE TRUSTEE ON BEHALF OF THE CERTIFICATEHOLDERS.
IF SELLER CANNOT DELIVER, OR CAUSE TO BE DELIVERED, AS TO ANY MORTGAGE LOAN, ANY
OF THE DOCUMENTS AND/OR INSTRUMENTS REFERRED TO IN SECTIONS 2.2.2, 2.2.3, 2.2.5
OR 2.2.6 HEREOF, WITH EVIDENCE OF RECORDING THEREON, SOLELY BECAUSE OF A DELAY
CAUSED BY THE PUBLIC RECORDING
9
OFFICE WHERE SUCH DOCUMENT OR INSTRUMENT HAS BEEN DELIVERED FOR RECORDATION
WITHIN SUCH 45 DAY PERIOD, BUT SELLER DELIVERS A PHOTOCOPY THEREOF (CERTIFIED BY
THE APPROPRIATE COUNTY RECORDER'S OFFICE TO BE A TRUE AND COMPLETE COPY OF THE
ORIGINAL THEREOF SUBMITTED FOR RECORDING), TO THE TRUSTEE WITHIN SUCH 45 DAY
PERIOD, SELLER SHALL THEN DELIVER WITHIN 90 DAYS AFTER THE CLOSING DATE THE
RECORDED DOCUMENT (OR WITHIN SUCH LONGER PERIOD AFTER THE CLOSING DATE AS THE
TRUSTEE MAY CONSENT TO, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD SO LONG
AS SELLER IS, AS CERTIFIED IN WRITING TO THE TRUSTEE NO LESS OFTEN THAN MONTHLY,
IN GOOD FAITH ATTEMPTING TO OBTAIN FROM THE APPROPRIATE COUNTY RECORDER'S OFFICE
SUCH ORIGINAL OR PHOTOCOPY).
THE TRUSTEE, AS ASSIGNEE OR TRANSFEREE OF PURCHASER, SHALL BE ENTITLED TO ALL
SCHEDULED PAYMENTS OF PRINCIPAL DUE ON THE MORTGAGE LOANS AFTER THE CUT-OFF
DATE, ALL OTHER PAYMENTS OF PRINCIPAL COLLECTED AFTER THE CUT-OFF DATE (OTHER
THAN SCHEDULED PAYMENTS OF PRINCIPAL DUE ON OR BEFORE THE CUT-OFF DATE), AND ALL
PAYMENTS OF INTEREST ON THE MORTGAGE LOANS ALLOCABLE TO THE PERIOD COMMENCING ON
THE CUT-OFF DATE. ALL SCHEDULED PAYMENTS OF PRINCIPAL AND INTEREST DUE ON OR
BEFORE THE CUT-OFF DATE AND COLLECTED AFTER THE CUT-OFF DATE SHALL BELONG TO
SELLER.
WITHIN 45 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND PURCHASER,
THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE SUBMITTED FOR
RECORDATION AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE FOR REAL
PROPERTY RECORDS, EACH ASSIGNMENT REFERRED TO IN CLAUSES 2.2.4 AND 2.2.6(II)
ABOVE. WITHIN 90 DAYS FOLLOWING THE CLOSING DATE, SELLER SHALL DELIVER AND
PURCHASER, THE TRUSTEE OR THE AGENTS OF EITHER MAY SUBMIT OR CAUSE TO BE
SUBMITTED FOR FILING, AT THE EXPENSE OF SELLER, IN THE APPROPRIATE PUBLIC OFFICE
FOR UNIFORM COMMERCIAL CODE FINANCING STATEMENTS, THE ASSIGNMENT REFERRED TO IN
CLAUSE 2.2.1. IF ANY SUCH DOCUMENT OR INSTRUMENT IS LOST OR RETURNED UNRECORDED
OR UNFILED, AS THE CASE MAY BE, BECAUSE OF A DEFECT THEREIN, SELLER SHALL
PREPARE A SUBSTITUTE THEREFOR OR CURE SUCH DEFECT, AND SELLER SHALL, AT ITS OWN
EXPENSE (EXCEPT IN THE CASE OF A DOCUMENT OR INSTRUMENT THAT IS LOST BY THE
TRUSTEE), RECORD OR FILE, AS THE CASE MAY BE, AND DELIVER SUCH DOCUMENT OR
INSTRUMENT IN ACCORDANCE WITH THIS SECTION 2.
DOCUMENTS THAT ARE IN THE POSSESSION OF SELLER, ITS AGENTS OR ITS SUBCONTRACTORS
THAT RELATE TO THE MORTGAGE LOANS AND THAT ARE NOT REQUIRED TO BE DELIVERED TO
THE TRUSTEE SHALL BE SHIPPED BY SELLER TO OR AT THE DIRECTION OF THE MASTER
SERVICER, ON BEHALF OF PURCHASER, ON OR PRIOR TO THE 75TH DAY AFTER THE CLOSING
DATE, IN ACCORDANCE WITH SECTION 3.1 OF THE PRIMARY SERVICING AGREEMENT, IF
APPLICABLE.
10
THE DOCUMENTS REQUIRED TO BE DELIVERED TO THE MASTER SERVICER (OR IN THE
ALTERNATIVE, THE PRIMARY SERVICER) SHALL INCLUDE, TO THE EXTENT REQUIRED TO BE
(AND ACTUALLY) DELIVERED TO 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
BORROWER/SPONSOR AND ANY GUARANTORS, ANY LETTERS OF CREDIT, ANY INTERCREDITOR
AGREEMENT AND ANY ENVIRONMENTAL INSURANCE POLICIES. DELIVERY OF ANY OF THE
FOREGOING DOCUMENTS TO THE PRIMARY SERVICER SHALL BE DEEMED A DELIVERY TO THE
MASTER SERVICER AND SATISFY SELLER'S OBLIGATIONS UNDER THIS SUBPARAGRAPH.
UPON THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER PURSUANT TO THIS
AGREEMENT, THE OWNERSHIP OF EACH MORTGAGE NOTE, MORTGAGE AND THE OTHER CONTENTS
OF THE RELATED MORTGAGE FILE SHALL BE VESTED IN PURCHASER AND ITS ASSIGNS, AND
THE OWNERSHIP OF ALL RECORDS AND DOCUMENTS WITH RESPECT TO THE RELATED MORTGAGE
LOAN PREPARED BY OR THAT COME INTO THE POSSESSION OF SELLER SHALL IMMEDIATELY
VEST IN PURCHASER AND ITS ASSIGNS, AND SHALL BE DELIVERED PROMPTLY BY SELLER TO
OR ON BEHALF OF EITHER THE TRUSTEE OR THE MASTER SERVICER AS SET FORTH HEREIN,
SUBJECT TO THE REQUIREMENTS OF THE PRIMARY SERVICING AGREEMENT. SELLER'S AND
PURCHASER'S RECORDS SHALL REFLECT THE TRANSFER OF EACH MORTGAGE LOAN FROM SELLER
TO PURCHASER AND ITS ASSIGNS AS A SALE.
IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THE CONVEYANCE OF THE
MORTGAGE LOANS AND RELATED PROPERTY TO PURCHASER BY SELLER AS PROVIDED IN THIS
SECTION 2 BE, AND BE CONSTRUED AS, AN ABSOLUTE SALE OF THE MORTGAGE LOANS AND
RELATED PROPERTY. IT IS, FURTHER, NOT THE INTENTION OF THE PARTIES THAT SUCH
CONVEYANCE BE DEEMED A PLEDGE OF THE MORTGAGE LOANS AND RELATED PROPERTY BY
SELLER TO PURCHASER TO SECURE A DEBT OR OTHER OBLIGATION OF SELLER. HOWEVER, IN
THE EVENT THAT, NOTWITHSTANDING THE INTENT OF THE PARTIES, THE MORTGAGE LOANS OR
ANY RELATED PROPERTY ARE HELD TO BE THE PROPERTY OF SELLER, 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
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THE CONVEYANCE PROVIDED FOR IN THIS SECTION 2 SHALL BE DEEMED TO BE A
GRANT BY SELLER TO PURCHASER OF A SECURITY INTEREST IN ALL OF SELLER'S RIGHT,
TITLE, AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN AND TO:
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 FOLLOWING PROPERTY: THE
MORTGAGE LOANS IDENTIFIED ON THE MORTGAGE LOAN SCHEDULE, INCLUDING THE
RELATED MORTGAGE NOTES, MORTGAGES, SECURITY AGREEMENTS, AND TITLE,
HAZARD AND OTHER INSURANCE POLICIES, ALL DISTRIBUTIONS WITH RESPECT
THERETO PAYABLE AFTER THE CUT-OFF DATE, ALL SUBSTITUTE OR REPLACEMENT
MORTGAGE LOANS AND ALL DISTRIBUTIONS WITH RESPECT THERETO, AND THE
MORTGAGE FILES;
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 (A) ABOVE (INCLUDING ANY ACCRUED DISCOUNT
REALIZED ON LIQUIDATION OF ANY INVESTMENT PURCHASED AT A DISCOUNT); AND
ALL CASH AND NON-CASH PROCEEDS OF THE COLLATERAL DESCRIBED IN
CLAUSES (A) AND (B) ABOVE.
THE POSSESSION BY PURCHASER OR ITS DESIGNEE 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, SECTION 9-313 THEREOF) AS IN FORCE IN THE
RELEVANT JURISDICTION. NOTWITHSTANDING THE FOREGOING, SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE PERFECTION OF ANY SUCH SECURITY INTEREST.
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,
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PURCHASER OR ITS DESIGNEE, AS APPLICABLE, FOR THE PURPOSE OF PERFECTING SUCH
SECURITY INTEREST UNDER APPLICABLE LAW.
SELLER 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 THIS
AGREEMENT. IN SUCH CASE, SELLER SHALL FILE 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 SUCH SECURITY INTEREST IN SUCH
PROPERTY. IN CONNECTION HEREWITH, PURCHASER 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND SUBJECT TO
SECTION 2.1 HEREOF, PURCHASER SHALL NOT BE REQUIRED TO PURCHASE ANY MORTGAGE
LOAN AS TO WHICH ANY MORTGAGE NOTE (ENDORSED AS DESCRIBED IN CLAUSE 2.2.1
HEREOF) REQUIRED TO BE DELIVERED TO OR ON BEHALF OF THE TRUSTEE OR THE MASTER
SERVICER PURSUANT TO THIS SECTION 2 ON OR BEFORE THE CLOSING DATE IS NOT SO
DELIVERED, OR IS NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, AND
PURCHASER'S ACCEPTANCE OF THE RELATED MORTGAGE LOAN ON THE CLOSING DATE SHALL IN
NO WAY CONSTITUTE A WAIVER OF SUCH OMISSION OR DEFECT OR OF PURCHASER'S OR ITS
SUCCESSORS' AND ASSIGNS' RIGHTS IN RESPECT THEREOF PURSUANT TO SECTION 5 HEREOF.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
SELLER SHALL (I) DELIVER TO PURCHASER ON OR BEFORE THE CLOSING DATE A DISKETTE
ACCEPTABLE TO PURCHASER THAT CONTAINS SUCH INFORMATION ABOUT THE MORTGAGE LOANS
AS MAY BE REASONABLY REQUESTED BY PURCHASER, (II) DELIVER TO PURCHASER INVESTOR
FILES (COLLECTIVELY THE "COLLATERAL INFORMATION") WITH RESPECT TO THE ASSETS
PROPOSED TO BE INCLUDED IN THE MORTGAGE POOL AND MADE AVAILABLE AT PURCHASER'S
HEADQUARTERS IN NEW YORK, AND (III) OTHERWISE COOPERATE FULLY WITH PURCHASER IN
ITS EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION AND MORTGAGE
FILES FOR THE MORTGAGE LOANS AND ITS DUE DILIGENCE REVIEW OF THE MORTGAGE LOANS.
THE FACT THAT PURCHASER HAS CONDUCTED OR HAS FAILED TO CONDUCT ANY PARTIAL OR
COMPLETE EXAMINATION OF THE CREDIT FILES, UNDERWRITING DOCUMENTATION OR MORTGAGE
FILES FOR THE MORTGAGE LOANS SHALL NOT AFFECT THE RIGHT OF PURCHASER OR THE
TRUSTEE TO CAUSE SELLER TO CURE ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH
(EACH AS DEFINED
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BELOW), OR TO REPURCHASE OR REPLACE THE DEFECTIVE MORTGAGE LOANS PURSUANT TO
SECTION 5 HEREOF.
ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL ALLOW REPRESENTATIVES OF ANY OF
PURCHASER, EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL
SERVICER AND EACH RATING AGENCY TO EXAMINE AND AUDIT ALL BOOKS, RECORDS AND
FILES PERTAINING TO THE MORTGAGE LOANS, SELLER'S UNDERWRITING PROCEDURES AND
SELLER'S ABILITY TO PERFORM OR OBSERVE ALL OF THE TERMS, COVENANTS AND
CONDITIONS OF THIS AGREEMENT. SUCH EXAMINATIONS AND AUDITS SHALL TAKE PLACE AT
ONE OR MORE OFFICES OF SELLER DURING NORMAL BUSINESS HOURS AND SHALL NOT BE
CONDUCTED IN A MANNER THAT IS DISRUPTIVE TO SELLER'S NORMAL BUSINESS OPERATIONS
UPON REASONABLE PRIOR ADVANCE NOTICE. IN THE COURSE OF SUCH EXAMINATIONS AND
AUDITS, SELLER WILL MAKE AVAILABLE TO SUCH REPRESENTATIVES OF ANY OF PURCHASER,
EACH UNDERWRITER, EACH INITIAL PURCHASER, THE TRUSTEE, THE SPECIAL SERVICER AND
EACH RATING AGENCY REASONABLY ADEQUATE FACILITIES, AS WELL AS THE ASSISTANCE OF
A SUFFICIENT NUMBER OF KNOWLEDGEABLE AND RESPONSIBLE INDIVIDUALS WHO ARE
FAMILIAR WITH THE MORTGAGE LOANS AND THE TERMS OF THIS AGREEMENT, AND SELLER
SHALL COOPERATE FULLY WITH ANY SUCH EXAMINATION AND AUDIT IN ALL MATERIAL
RESPECTS. ON OR PRIOR TO THE CLOSING DATE, SELLER SHALL PROVIDE PURCHASER WITH
ALL MATERIAL INFORMATION REGARDING SELLER'S FINANCIAL CONDITION AND ACCESS TO
KNOWLEDGEABLE FINANCIAL OR ACCOUNTING OFFICERS FOR THE PURPOSE OF ANSWERING
QUESTIONS WITH RESPECT TO SELLER'S FINANCIAL CONDITION, FINANCIAL STATEMENTS AS
PROVIDED TO PURCHASER OR OTHER DEVELOPMENTS AFFECTING SELLER'S ABILITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR OTHERWISE AFFECTING SELLER IN
ANY MATERIAL RESPECT. WITHIN 45 DAYS AFTER THE CLOSING DATE, SELLER SHALL
PROVIDE THE MASTER SERVICER OR PRIMARY SERVICER, IF APPLICABLE, WITH ANY
ADDITIONAL INFORMATION IDENTIFIED BY THE MASTER SERVICER OR PRIMARY SERVICER, IF
APPLICABLE, AS NECESSARY TO COMPLETE THE CMSA PROPERTY FILE, TO THE EXTENT THAT
SUCH INFORMATION IS AVAILABLE.
PURCHASER MAY EXERCISE ANY OF ITS RIGHTS HEREUNDER THROUGH ONE OR MORE DESIGNEES
OR AGENTS, PROVIDED PURCHASER HAS PROVIDED SELLER WITH PRIOR NOTICE OF THE
IDENTITY OF SUCH DESIGNEE OR AGENT.
PURCHASER SHALL KEEP CONFIDENTIAL ANY INFORMATION REGARDING SELLER AND THE
MORTGAGE LOANS THAT HAS BEEN DELIVERED INTO PURCHASER'S POSSESSION AND THAT IS
NOT OTHERWISE PUBLICLY AVAILABLE; PROVIDED, HOWEVER, THAT SUCH INFORMATION SHALL
NOT BE KEPT CONFIDENTIAL (AND THE RIGHT TO REQUIRE CONFIDENTIALITY UNDER ANY
CONFIDENTIALITY AGREEMENT IS HEREBY WAIVED) TO THE EXTENT SUCH INFORMATION IS
REQUIRED TO BE INCLUDED IN THE MEMORANDUM OR THE PROSPECTUS SUPPLEMENT OR
PURCHASER IS REQUIRED BY LAW OR COURT
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ORDER TO DISCLOSE SUCH INFORMATION. IF PURCHASER IS REQUIRED TO DISCLOSE IN THE
MEMORANDUM OR THE PROSPECTUS SUPPLEMENT CONFIDENTIAL INFORMATION REGARDING
SELLER AS DESCRIBED IN THE PRECEDING SENTENCE, PURCHASER SHALL PROVIDE TO SELLER
A COPY OF THE PROPOSED FORM OF SUCH DISCLOSURE PRIOR TO MAKING SUCH DISCLOSURE
AND SELLER SHALL PROMPTLY, AND IN ANY EVENT WITHIN TWO BUSINESS DAYS, NOTIFY
PURCHASER OF ANY INACCURACIES THEREIN, IN WHICH CASE PURCHASER SHALL MODIFY SUCH
FORM IN A MANNER THAT CORRECTS SUCH INACCURACIES. IF PURCHASER IS REQUIRED BY
LAW OR COURT ORDER TO DISCLOSE CONFIDENTIAL INFORMATION REGARDING SELLER AS
DESCRIBED IN THE SECOND PRECEDING SENTENCE, PURCHASER SHALL NOTIFY SELLER AND
COOPERATE IN SELLER'S EFFORTS TO OBTAIN A PROTECTIVE ORDER OR OTHER REASONABLE
ASSURANCE THAT CONFIDENTIAL TREATMENT WILL BE ACCORDED SUCH INFORMATION AND, IF
IN THE ABSENCE OF A PROTECTIVE ORDER OR SUCH ASSURANCE, PURCHASER IS COMPELLED
AS A MATTER OF LAW TO DISCLOSE SUCH INFORMATION, PURCHASER SHALL, PRIOR TO
MAKING SUCH DISCLOSURE, ADVISE AND CONSULT WITH SELLER AND ITS COUNSEL AS TO
SUCH DISCLOSURE AND THE NATURE AND WORDING OF SUCH DISCLOSURE AND PURCHASER
SHALL USE REASONABLE EFFORTS TO OBTAIN CONFIDENTIAL TREATMENT THEREFOR.
NOTWITHSTANDING THE FOREGOING, IF REASONABLY ADVISED BY COUNSEL THAT PURCHASER
IS REQUIRED BY A REGULATORY AGENCY OR COURT ORDER TO MAKE SUCH DISCLOSURE
IMMEDIATELY, THEN PURCHASER SHALL BE PERMITTED TO MAKE SUCH DISCLOSURE WITHOUT
PRIOR REVIEW BY SELLER.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
TO INDUCE PURCHASER TO ENTER INTO THIS AGREEMENT, SELLER HEREBY MAKES FOR THE
BENEFIT OF PURCHASER AND ITS ASSIGNS WITH RESPECT TO EACH MORTGAGE LOAN AS OF
THE DATE HEREOF (OR AS OF SUCH OTHER DATE SPECIFICALLY SET FORTH IN THE
PARTICULAR REPRESENTATION AND WARRANTY) EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH ON EXHIBIT 2 HERETO, EXCEPT AS OTHERWISE SET FORTH ON
SCHEDULE A ATTACHED HERETO, AND HEREBY FURTHER REPRESENTS, WARRANTS AND
COVENANTS TO PURCHASER AS OF THE DATE HEREOF THAT:
SELLER IS DULY ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF STATEPLACENEW YORK. SELLER HAS THE
REQUISITE POWER AND AUTHORITY AND LEGAL RIGHT TO OWN THE MORTGAGE LOANS AND TO
TRANSFER AND CONVEY THE MORTGAGE LOANS TO PURCHASER AND HAS THE REQUISITE POWER
AND AUTHORITY TO EXECUTE AND DELIVER, ENGAGE IN THE TRANSACTIONS CONTEMPLATED
BY, AND PERFORM AND OBSERVE THE TERMS AND CONDITIONS OF, THIS AGREEMENT.
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THIS AGREEMENT HAS BEEN DULY AND VALIDLY AUTHORIZED, EXECUTED AND
DELIVERED BY SELLER, AND ASSUMING THE DUE AUTHORIZATION, EXECUTION AND DELIVERY
HEREOF BY PURCHASER, THIS AGREEMENT CONSTITUTES THE VALID, LEGAL AND BINDING
AGREEMENT OF SELLER, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (A) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (B) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (C) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (D) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY SELLER WITH THIS AGREEMENT, OR THE CONSUMMATION BY SELLER OF ANY
TRANSACTION CONTEMPLATED HEREBY, OTHER THAN (A) SUCH QUALIFICATIONS AS MAY BE
REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS, (B) THE FILING OR RECORDING OF
FINANCING STATEMENTS, INSTRUMENTS OF ASSIGNMENT AND OTHER SIMILAR DOCUMENTS
NECESSARY IN CONNECTION WITH SELLER'S SALE OF THE MORTGAGE LOANS TO PURCHASER,
(C) SUCH CONSENTS, APPROVALS, AUTHORIZATIONS, QUALIFICATIONS, REGISTRATIONS,
FILINGS OR NOTICES AS HAVE BEEN OBTAINED AND (D) WHERE THE LACK OF SUCH CONSENT,
APPROVAL, AUTHORIZATION, QUALIFICATION, REGISTRATION, FILING OR NOTICE WOULD NOT
HAVE A MATERIAL ADVERSE EFFECT ON THE PERFORMANCE BY SELLER UNDER THIS
AGREEMENT.
NEITHER THE TRANSFER OF THE MORTGAGE LOANS TO PURCHASER, NOR THE
EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY SELLER, CONFLICTS OR
WILL CONFLICT WITH, RESULTS OR WILL RESULT IN A BREACH OF, OR CONSTITUTES OR
WILL CONSTITUTE A DEFAULT UNDER (A) ANY TERM OR PROVISION OF SELLER'S ARTICLES
OF ORGANIZATION OR BY-LAWS, (B) ANY TERM OR PROVISION OF ANY MATERIAL AGREEMENT,
CONTRACT, INSTRUMENT OR INDENTURE TO WHICH SELLER IS A PARTY OR BY WHICH IT OR
ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION OF ANY LIEN,
CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE TERMS OF ANY SUCH
INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN PURSUANT TO THIS
AGREEMENT, OR (C) AFTER GIVING EFFECT TO THE CONSENTS OR TAKING OF THE ACTIONS
CONTEMPLATED IN SECTION 4.1.3 HEREOF, ANY LAW, RULE, REGULATION, ORDER,
JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY
HAVING JURISDICTION OVER SELLER OR ITS ASSETS, EXCEPT WHERE IN ANY OF THE
INSTANCES CONTEMPLATED BY CLAUSES (B) OR (C) ABOVE, ANY CONFLICT,
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BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE,
WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY BY SELLER OR ITS ABILITY TO PERFORM ITS OBLIGATIONS AND
DUTIES HEREUNDER OR RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS,
OPERATIONS, FINANCIAL CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY
MATERIAL IMPAIRMENT OF THE RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS
SUBSTANTIALLY AS NOW CONDUCTED.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
SELLER PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED IN WRITING AGAINST SELLER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE TRANSFER OF
THE MORTGAGE LOANS TO PURCHASER OR THE EXECUTION OR DELIVERY BY, OR
ENFORCEABILITY AGAINST, SELLER OF THIS AGREEMENT OR HAVE AN EFFECT ON THE
FINANCIAL CONDITION OF SELLER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE
ABILITY OF SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
ON THE CLOSING DATE, THE SALE OF THE MORTGAGE LOANS PURSUANT TO THIS
AGREEMENT WILL EFFECT A TRANSFER BY SELLER OF ALL OF ITS RIGHT, TITLE AND
INTEREST IN AND TO THE MORTGAGE LOANS TO PURCHASER.
TO SELLER'S KNOWLEDGE, SELLER'S INFORMATION (AS DEFINED IN THAT CERTAIN
INDEMNIFICATION AGREEMENT, DATED OCTOBER 18, 2006, BETWEEN SELLER, PURCHASER,
THE UNDERWRITERS AND THE INITIAL PURCHASERS (THE "INDEMNIFICATION AGREEMENT"))
DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS SUBPARAGRAPH 4.1.7 SHALL RUN
EXCLUSIVELY TO THE BENEFIT OF PURCHASER AND NO OTHER PARTY.
THE SELLER HAS COMPLIED WITH THE DISCLOSURE REQUIREMENTS OF REGULATION
AB THAT ARISE FROM ITS ROLE AS "ORIGINATOR" AND "SPONSOR" IN CONNECTION WITH THE
ISSUANCE OF THE PUBLIC CERTIFICATES.
FOR SO LONG AS THE TRUST IS SUBJECT TO THE REPORTING REQUIREMENTS OF THE
EXCHANGE ACT, THE SELLER SHALL PROVIDE THE PURCHASER (OR WITH RESPECT TO ANY
SERVICED COMPANION MORTGAGE LOAN THAT IS DEPOSITED INTO AN OTHER SECURITIZATION,
THE DEPOSITOR IN SUCH OTHER SECURITIZATION) AND THE PAYING AGENT WITH ANY
ADDITIONAL FORM 10-D DISCLOSURE AND ANY ADDITIONAL FORM 10-K DISCLOSURE SET
FORTH NEXT TO THE SELLER'S NAME ON SCHEDULE XV AND SCHEDULE XVI OF THE POOLING
AND SERVICING AGREEMENT WITHIN THE TIME
17
PERIODS AND IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by
Seller pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans
and shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY REPRESENTS AND
WARRANTS TO SELLER AS OF THE DATE HEREOF:
PURCHASER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF DELAWARE WITH FULL POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED BY IT.
PURCHASER HAS FULL POWER AND AUTHORITY TO ACQUIRE THE MORTGAGE LOANS, TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO ENTER INTO AND CONSUMMATE ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER HAS DULY AND VALIDLY
AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND HAS
DULY AND VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT. THIS AGREEMENT, ASSUMING
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY SELLER, CONSTITUTES THE VALID AND
BINDING OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF, REGISTRATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR COURT IS REQUIRED, UNDER
FEDERAL OR STATE LAW, FOR THE EXECUTION, DELIVERY AND PERFORMANCE OF OR
COMPLIANCE BY PURCHASER WITH THIS AGREEMENT, OR THE CONSUMMATION BY PURCHASER OF
ANY TRANSACTION CONTEMPLATED HEREBY THAT HAS NOT BEEN OBTAINED OR MADE BY
PURCHASER.
NEITHER THE PURCHASE OF THE MORTGAGE LOANS NOR THE EXECUTION, DELIVERY
AND PERFORMANCE OF THIS AGREEMENT BY PURCHASER WILL VIOLATE PURCHASER'S
CERTIFICATE OF INCORPORATION OR BY-LAWS OR CONSTITUTE A DEFAULT (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME
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OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN A BREACH OF, ANY
MATERIAL AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE TO WHICH PURCHASER IS A
PARTY OR THAT MAY BE APPLICABLE TO PURCHASER OR ITS ASSETS.
PURCHASER'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND ITS PERFORMANCE
AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT WILL NOT CONSTITUTE A VIOLATION
OF ANY LAW, RULE, WRIT, INJUNCTION, ORDER OR DECREE OF ANY COURT, OR ORDER OR
REGULATION OF ANY FEDERAL, STATE OR MUNICIPAL GOVERNMENT AGENCY HAVING
JURISDICTION OVER PURCHASER OR ITS ASSETS, WHICH VIOLATION COULD MATERIALLY AND
ADVERSELY AFFECT THE CONDITION (FINANCIAL OR OTHERWISE) OR THE OPERATION OF
PURCHASER OR ITS ASSETS OR COULD MATERIALLY AND ADVERSELY AFFECT ITS ABILITY TO
PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER.
THERE ARE NO ACTIONS OR PROCEEDINGS AGAINST, OR INVESTIGATIONS OF,
PURCHASER PENDING OR, TO PURCHASER'S KNOWLEDGE, THREATENED AGAINST PURCHASER
BEFORE ANY COURT, ADMINISTRATIVE AGENCY OR OTHER TRIBUNAL, THE OUTCOME OF WHICH
COULD REASONABLY BE EXPECTED TO ADVERSELY AFFECT THE TRANSFER OF THE MORTGAGE
LOANS, THE ISSUANCE OF THE CERTIFICATES, THE EXECUTION, DELIVERY OR
ENFORCEABILITY OF THIS AGREEMENT OR HAVE AN EFFECT ON THE FINANCIAL CONDITION OF
PURCHASER THAT WOULD MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF PURCHASER TO
PERFORM ITS OBLIGATION UNDER THIS AGREEMENT.
PURCHASER HAS NOT DEALT WITH ANY BROKER, INVESTMENT BANKER, AGENT OR
OTHER PERSON, OTHER THAN SELLER, THE UNDERWRITERS, THE INITIAL PURCHASERS AND
THEIR RESPECTIVE AFFILIATES, THAT MAY BE ENTITLED TO ANY COMMISSION OR
COMPENSATION IN CONNECTION WITH THE SALE OF THE MORTGAGE LOANS OR CONSUMMATION
OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser
pursuant to this Section 4.2 shall survive the purchase of the Mortgage Loans.
REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
IT IS HEREBY ACKNOWLEDGED THAT SELLER SHALL MAKE FOR THE BENEFIT OF THE TRUSTEE
ON BEHALF OF THE HOLDERS OF THE CERTIFICATES, WHETHER DIRECTLY OR BY WAY OF
PURCHASER'S ASSIGNMENT OF ITS RIGHTS
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HEREUNDER TO THE TRUSTEE, THE REPRESENTATIONS AND WARRANTIES SET FORTH ON
EXHIBIT 2 HERETO (EACH AS OF THE DATE HEREOF UNLESS OTHERWISE SPECIFIED).
IT IS HEREBY FURTHER ACKNOWLEDGED THAT IF ANY DOCUMENT REQUIRED TO BE DELIVERED
TO THE TRUSTEE PURSUANT TO SECTION 2 HEREOF IS NOT DELIVERED AS AND WHEN
REQUIRED, NOT PROPERLY EXECUTED OR IS DEFECTIVE ON ITS FACE, OR IF THERE IS A
BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES REQUIRED TO BE MADE BY
SELLER REGARDING THE CHARACTERISTICS OF THE MORTGAGE LOANS AND/OR THE RELATED
MORTGAGED PROPERTIES AS SET FORTH IN EXHIBIT 2 HERETO, AND IN EITHER CASE THE
PARTY DISCOVERING SUCH BREACH OR DEFECT DETERMINES THAT EITHER (I) THE DEFECT OR
BREACH MATERIALLY AND ADVERSELY AFFECTS THE INTERESTS OF THE HOLDERS OF THE
CERTIFICATES IN THE RELATED MORTGAGE LOAN OR (II) BOTH (A) THE DEFECT OR BREACH
MATERIALLY AND ADVERSELY AFFECTS THE VALUE OF THE MORTGAGE LOAN AND (B) THE
MORTGAGE LOAN IS A SPECIALLY SERVICED MORTGAGE LOAN OR REHABILITATED MORTGAGE
LOAN (ANY SUCH DEFECT DESCRIBED IN THE PRECEDING CLAUSE (I) OR (II), A "MATERIAL
DOCUMENT DEFECT" AND ANY SUCH BREACH DESCRIBED IN THE PRECEDING CLAUSE (I) OR
(II), A "MATERIAL BREACH"), THE PARTY DETERMINING THAT SUCH MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH EXISTS SHALL PROMPTLY NOTIFY, IN WRITING, THE OTHER
PARTIES; PROVIDED THAT ANY BREACH OF THE REPRESENTATION AND WARRANTY CONTAINED
IN PARAGRAPH (41) OF SUCH EXHIBIT 2 SHALL CONSTITUTE A MATERIAL BREACH ONLY IF
SUCH PREPAYMENT PREMIUM OR YIELD MAINTENANCE CHARGE IS NOT DEEMED "CUSTOMARY"
FOR COMMERCIAL MORTGAGE LOANS AS EVIDENCED BY (I) AN OPINION OF TAX COUNSEL TO
SUCH EFFECT OR (II) A DETERMINATION BY THE INTERNAL REVENUE SERVICE THAT SUCH
PROVISION IS NOT CUSTOMARY. PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS
DAYS) UPON DETERMINING (OR BECOMING AWARE OF ANOTHER PARTY'S DETERMINATION) THAT
ANY SUCH MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH DETERMINATION
SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO EARLIER THAN THREE
BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE TO SELLER REFERRED TO BELOW), THE
MASTER SERVICER SHALL, AND THE SPECIAL SERVICER MAY, REQUEST THAT SELLER, NOT
LATER THAN 90 DAYS FROM 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 SELLER IS
DILIGENTLY ATTEMPTING TO EFFECT SUCH CORRECTION OR CURE, AS CERTIFIED BY SELLER
IN AN OFFICER'S CERTIFICATE DELIVERED TO THE TRUSTEE, THEN THE CURE PERIOD WILL
BE EXTENDED FOR
20
AN ADDITIONAL 90 DAYS UNLESS, SOLELY IN THE CASE OF A MATERIAL DOCUMENT DEFECT,
(X) THE MORTGAGE LOAN IS THEN A SPECIALLY SERVICED MORTGAGE LOAN AND A SERVICING
TRANSFER EVENT HAS OCCURRED AS A RESULT OF A MONETARY DEFAULT OR AS DESCRIBED IN
CLAUSE (II) OR CLAUSE (V) OF THE DEFINITION OF "SERVICING TRANSFER EVENT" IN THE
POOLING AND SERVICING AGREEMENT AND (Y) THE MATERIAL DOCUMENT DEFECT WAS
IDENTIFIED IN A CERTIFICATION DELIVERED TO SELLER BY THE TRUSTEE PURSUANT TO
SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT 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 SELLER PURSUANT TO SECTION 2.2 OF THE POOLING AND SERVICING AGREEMENT OR
OTHERWISE NOR POSSESSION OF SUCH CERTIFICATION OR SCHEDULE BY SELLER SHALL, IN
AND OF ITSELF, CONSTITUTE DELIVERY OF NOTICE OF ANY MATERIAL DOCUMENT DEFECT OR
KNOWLEDGE OR AWARENESS BY SELLER, THE MASTER SERVICER OR THE SPECIAL SERVICER OF
ANY MATERIAL DOCUMENT DEFECT LISTED THEREIN.
SELLER HEREBY COVENANTS AND AGREES THAT, IF ANY SUCH MATERIAL DOCUMENT DEFECT OR
MATERIAL BREACH CANNOT BE CORRECTED OR CURED OR SELLER OTHERWISE FAILS TO
CORRECT OR CURE WITHIN THE ABOVE CURE PERIODS, SELLER SHALL, ON OR BEFORE THE
TERMINATION OF SUCH CURE PERIODS, EITHER (I) REPURCHASE THE AFFECTED MORTGAGE
LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) FROM PURCHASER OR ITS ASSIGNEE
AT THE PURCHASE PRICE AS DEFINED IN THE POOLING AND SERVICING 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 ITS OPTION REPLACE,
WITHOUT RECOURSE, ANY MORTGAGE LOAN OR REO MORTGAGE LOAN TO WHICH SUCH DEFECT
RELATES 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, REPURCHASE MUST OCCUR WITHIN 85 DAYS FROM
THE DATE SELLER WAS NOTIFIED OF THE DEFECT. SELLER AGREES THAT ANY SUBSTITUTION
SHALL BE COMPLETED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE POOLING
AND SERVICING AGREEMENT.
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
21
(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 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, (A)
SELLER PROVIDES A NONDISQUALIFICATION OPINION TO THE TRUSTEE AT THE EXPENSE OF
SELLER IF, IN THE REASONABLE BUSINESS JUDGMENT OF THE TRUSTEE, IT WOULD BE USUAL
AND CUSTOMARY IN ACCORDANCE WITH INDUSTRY PRACTICE TO OBTAIN A
NONDISQUALIFICATION OPINION AND (B) BOTH OF THE FOLLOWING CONDITIONS WOULD BE
SATISFIED IF 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 THOSE CROSSED 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 CROSSED MORTGAGE LOANS (INCLUDING THE AFFECTED LOANS(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
LOANS(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 SELLER TO (IN
WHICH CASE 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 SELLER IF THE SCOPE AND COST OF THE
APPRAISAL IS APPROVED BY SELLER (SUCH APPROVAL NOT TO BE UNREASONABLY WITHHELD).
WITH RESPECT TO ANY DEFECTIVE MORTGAGE LOAN, TO THE EXTENT THAT SELLER IS
REQUIRED TO REPURCHASE OR SUBSTITUTE FOR SUCH DEFECTIVE MORTGAGE LOAN (EACH, A
"REPURCHASED LOAN") IN THE MANNER PRESCRIBED ABOVE WHILE THE TRUSTEE (AS
ASSIGNEE OF PURCHASER)
22
CONTINUES TO HOLD ANY CROSSED MORTGAGE LOAN, SELLER AND PURCHASER HEREBY AGREE
TO FOREBEAR FROM ENFORCING ANY REMEDIES AGAINST THE OTHER'S PRIMARY COLLATERAL
BUT MAY EXERCISE REMEDIES AGAINST THE PRIMARY COLLATERAL SECURING THEIR
RESPECTIVE MORTGAGE LOANS, INCLUDING WITH RESPECT TO THE TRUSTEE, THE PRIMARY
COLLATERAL SECURING THE 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 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 SHALL 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 POOLING AND SERVICING
AGREEMENT TO REMOVE THE THREAT OF 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 B 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 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; OR (C) THE ABSENCE FROM THE MORTGAGE FILE OF THE ITEM SPECIFIED IN
PARAGRAPH 2.2.8. 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) OF THE POOLING AND SERVICING AGREEMENT, THE MASTER
SERVICER) WILL TAKE THE STEPS DESCRIBED ELSEWHERE IN THIS SECTION, INCLUDING THE
GIVING OF NOTICES TO THE RATING AGENCIES AND THE PARTIES HERETO AND MAKING
DEMAND UPON SELLER FOR THE CURE OF THE MATERIAL DOCUMENT DEFECT OR REPURCHASE OR
REPLACEMENT OF THE RELATED MORTGAGE LOAN.
23
IF 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 PURCHASER OR ITS ASSIGNEE OR (III) TO REPLACE
SUCH MORTGAGE LOAN WITH A QUALIFYING SUBSTITUTE MORTGAGE LOAN, EACH IN
ACCORDANCE WITH THIS AGREEMENT, THEN PROVIDED THAT (X) THE PERIOD OF TIME
PROVIDED FOR 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, WORK-OUT OR
FORECLOSE, SELL OR OTHERWISE LIQUIDATE (OR PERMIT THE LIQUIDATION OF) THE
MORTGAGE LOAN PURSUANT TO SECTIONS 9.5, 9.12, 9.15 AND 9.36, AS APPLICABLE, OF
THE POOLING AND SERVICING AGREEMENT, WHILE PURSUING THE REPURCHASE CLAIM. SELLER
ACKNOWLEDGES AND AGREES THAT ANY MODIFICATION OF THE MORTGAGE LOAN PURSUANT TO A
WORK-OUT SHALL NOT CONSTITUTE A DEFENSE TO ANY REPURCHASE CLAIM NOR SHALL SUCH
MODIFICATION AND WORK-OUT CHANGE THE PURCHASE PRICE DUE FROM SELLER FOR ANY
REPURCHASE CLAIM. IN THE EVENT OF ANY SUCH MODIFICATION AND WORK-OUT, SELLER
SHALL BE OBLIGATED TO REPURCHASE THE MORTGAGE LOAN AS MODIFIED AND 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 SELLER IN RESPECT OF ANY WORK-OUT FEE IF A LIQUIDATION
FEE ALREADY COMPRISES A PORTION OF THE PURCHASE PRICE.
SELLER SHALL HAVE THE RIGHT TO PURCHASE CERTAIN OF THE MORTGAGE LOANS OR REO
PROPERTIES, AS APPLICABLE, IN ACCORDANCE WITH SECTION 9.36 OF THE POOLING AND
SERVICING AGREEMENT.
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 SELLER FOR
REPURCHASE OF THE REO MORTGAGE LOAN OR REO PROPERTY. IN SUCH AN EVENT, THE
MASTER SERVICER SHALL NOTIFY SELLER OF THE DISCOVERY OF THE MATERIAL DOCUMENT
DEFECT OR MATERIAL BREACH AND SELLER SHALL HAVE 90 DAYS TO CORRECT OR CURE SUCH
MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH OR PURCHASE THE REO PROPERTY (OR
INTEREST THEREIN) AT THE PURCHASE PRICE. AFTER A FINAL LIQUIDATION OF THE
MORTGAGE LOAN OR REO MORTGAGE LOAN, IF A COURT OF COMPETENT JURISDICTION ISSUES
A FINAL ORDER AFTER THE EXPIRATION OF ANY APPLICABLE APPEAL PERIOD THAT SELLER
IS OR WAS OBLIGATED TO REPURCHASE THE RELATED
24
MORTGAGE LOAN OR REO MORTGAGE LOAN (OR INTEREST THEREIN) (A "FINAL JUDICIAL
DETERMINATION") OR SELLER OTHERWISE ACCEPTS LIABILITY, THEN, BUT IN NO EVENT
LATER THAN THE TERMINATION OF THE TRUST PURSUANT TO SECTION 9.30 OF THE POOLING
AND SERVICING AGREEMENT, SELLER WILL BE OBLIGATED TO PAY TO THE TRUST THE
DIFFERENCE BETWEEN ANY LIQUIDATION PROCEEDS RECEIVED UPON SUCH LIQUIDATION IN
ACCORDANCE WITH THE POOLING AND SERVICING AGREEMENT (INCLUDING THOSE ARISING
FROM ANY SALE TO SELLER) AND THE PURCHASE PRICE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN CONNECTION WITH
ANY SALE OR OTHER LIQUIDATION OF A MORTGAGE LOAN OR REO PROPERTY AS DESCRIBED IN
THIS SECTION 5, THE SPECIAL SERVICER SHALL NOT RECEIVE A LIQUIDATION FEE FROM
SELLER (BUT MAY COLLECT SUCH LIQUIDATION FEE FROM THE RELATED LIQUIDATION
PROCEEDS AS OTHERWISE PROVIDED HEREIN); PROVIDED, HOWEVER, THAT IN THE EVENT
SELLER IS OBLIGATED TO REPURCHASE THE MORTGAGE LOAN OR REO MORTGAGED PROPERTY
(OR INTEREST THEREIN) AFTER A FINAL LIQUIDATION OF SUCH MORTGAGE LOAN OR REO
PROPERTY PURSUANT TO THE IMMEDIATELY PRECEDING PARAGRAPH, AN AMOUNT EQUAL TO ANY
LIQUIDATION FEE (CALCULATED ON THE BASIS OF LIQUIDATION PROCEEDS) PAYABLE TO THE
SPECIAL SERVICER SHALL BE INCLUDED IN THE DEFINITION OF "PURCHASE PRICE" IN
RESPECT OF SUCH MORTGAGE LOAN OR REO MORTGAGED PROPERTY. EXCEPT AS EXPRESSLY SET
FORTH ABOVE, NO LIQUIDATION FEE SHALL BE PAYABLE IN CONNECTION WITH A REPURCHASE
OF A MORTGAGE LOAN BY SELLER.
THE OBLIGATIONS OF SELLER SET FORTH IN THIS SECTION 5 TO CURE A MATERIAL
DOCUMENT DEFECT OR A MATERIAL BREACH OR REPURCHASE OR REPLACE A DEFECTIVE
MORTGAGE LOAN CONSTITUTE THE SOLE REMEDIES OF PURCHASER OR ITS ASSIGNEES WITH
RESPECT TO A MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH IN RESPECT OF AN
OUTSTANDING MORTGAGE LOAN; PROVIDED, THAT THIS LIMITATION SHALL NOT IN ANY WAY
LIMIT PURCHASER'S RIGHTS OR REMEDIES UPON BREACH OF ANY OTHER REPRESENTATION OR
WARRANTY OR COVENANT BY SELLER SET FORTH IN THIS AGREEMENT (OTHER THAN THOSE SET
FORTH IN EXHIBIT 2).
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 39 IN EXHIBIT 2 HERETO,
AND AS A RESULT THE PAYMENTS, BY A MORTGAGOR, OF REASONABLE COSTS AND EXPENSES
ASSOCIATED WITH THE DEFEASANCE OR ASSUMPTION OF A MORTGAGE LOAN ARE INSUFFICIENT
CAUSING THE TRUST TO INCUR AN ADDITIONAL TRUST EXPENSE IN AN AMOUNT EQUAL TO
SUCH REASONABLE COSTS AND EXPENSES NOT PAID BY SUCH MORTGAGOR, SELLER HEREBY
COVENANTS AND AGREES TO REIMBURSE THE TRUST WITHIN 90 DAYS OF THE RECEIPT OF
NOTICE OF SUCH BREACH IN AN AMOUNT SUFFICIENT TO AVOID SUCH ADDITIONAL TRUST
EXPENSE. THE PARTIES HERETO ACKNOWLEDGE THAT SUCH REIMBURSEMENT SHALL BE
SELLER'S SOLE
25
OBLIGATION WITH RESPECT TO THE BREACH DISCUSSED IN THE PREVIOUS SENTENCE.
THE POOLING AND SERVICING AGREEMENT SHALL PROVIDE THAT THE TRUSTEE (OR THE
MASTER SERVICER OR THE SPECIAL SERVICER ON ITS BEHALF) SHALL GIVE WRITTEN NOTICE
PROMPTLY (BUT IN ANY EVENT WITHIN THREE BUSINESS DAYS) TO SELLER OF ITS
DETERMINATION THAT ANY MATERIAL DOCUMENT DEFECT OR MATERIAL BREACH EXISTS (WHICH
DETERMINATION SHALL, ABSENT EVIDENCE TO THE CONTRARY, BE PRESUMED TO BE NO
EARLIER THAN THREE BUSINESS DAYS PRIOR TO DELIVERY OF THE NOTICE) AND PROMPT
WRITTEN NOTICE TO SELLER IN THE EVENT THAT ANY MORTGAGE LOAN BECOMES A SPECIALLY
SERVICED MORTGAGE LOAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
IF SELLER REPURCHASES ANY MORTGAGE LOAN PURSUANT TO THIS SECTION 5, PURCHASER OR
ITS ASSIGNEE, FOLLOWING RECEIPT BY THE TRUSTEE OF THE PURCHASE PRICE THEREFOR,
PROMPTLY SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER ALL MORTGAGE LOAN
DOCUMENTS WITH RESPECT TO SUCH MORTGAGE LOAN, AND EACH DOCUMENT THAT CONSTITUTES
A PART OF THE MORTGAGE FILE THAT WAS ENDORSED OR ASSIGNED TO THE TRUSTEE SHALL
BE ENDORSED AND ASSIGNED TO SELLER IN THE SAME MANNER SUCH THAT SELLER SHALL BE
VESTED WITH LEGAL AND BENEFICIAL TITLE TO SUCH MORTGAGE LOAN, IN EACH CASE
WITHOUT RECOURSE, INCLUDING ANY PROPERTY ACQUIRED IN RESPECT OF SUCH MORTGAGE
LOAN OR PROCEEDS OF ANY INSURANCE POLICIES WITH RESPECT THERETO.
CLOSING.
THE CLOSING OF THE SALE OF THE MORTGAGE LOANS SHALL BE HELD AT THE OFFICES OF
XXXXXX & XXXXXXX XXX, XXXXXXXXXXXXX000 THIRD AVENUE, CITYNEW YORK, STATENY
POSTALCODE10022 AT 9:00 A.M., PLACESTATENEW YORK TIME, ON THE CLOSING DATE. THE
CLOSING SHALL BE SUBJECT TO EACH OF THE FOLLOWING CONDITIONS:
ALL OF THE REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER
SPECIFIED IN SECTION 4 HEREOF (INCLUDING, WITHOUT LIMITATION, THE
REPRESENTATIONS AND WARRANTIES SET FORTH ON EXHIBIT 2 HERETO) SHALL BE TRUE AND
CORRECT AS OF THE CLOSING DATE (TO THE EXTENT OF THE STANDARD, IF ANY, SET FORTH
IN EACH REPRESENTATION AND WARRANTY).
ALL CLOSING DOCUMENTS SPECIFIED IN SECTION 7 HEREOF, IN SUCH FORMS AS
ARE AGREED UPON AND REASONABLY ACCEPTABLE TO SELLER OR PURCHASER, AS APPLICABLE,
SHALL BE DULY EXECUTED AND DELIVERED BY ALL SIGNATORIES AS REQUIRED PURSUANT TO
THE RESPECTIVE TERMS THEREOF.
26
SELLER SHALL HAVE DELIVERED AND RELEASED TO PURCHASER OR ITS DESIGNEE
ALL DOCUMENTS REQUIRED TO BE DELIVERED TO PURCHASER AS OF THE CLOSING DATE
PURSUANT TO SECTION 2 HEREOF.
THE RESULT OF THE EXAMINATION AND AUDIT PERFORMED BY PURCHASER AND ITS
AFFILIATES PURSUANT TO SECTION 3 HEREOF SHALL BE SATISFACTORY TO PURCHASER AND
ITS AFFILIATES IN THEIR SOLE DETERMINATION AND THE PARTIES SHALL HAVE AGREED TO
THE FORM AND CONTENTS OF SELLER'S INFORMATION TO BE DISCLOSED IN THE MEMORANDUM
AND THE PROSPECTUS SUPPLEMENT.
ALL OTHER TERMS AND CONDITIONS OF THIS AGREEMENT REQUIRED TO BE COMPLIED
WITH ON OR BEFORE THE CLOSING DATE SHALL HAVE BEEN COMPLIED WITH, AND SELLER AND
PURCHASER SHALL HAVE THE ABILITY TO COMPLY WITH ALL TERMS AND CONDITIONS AND
PERFORM ALL DUTIES AND OBLIGATIONS REQUIRED TO BE COMPLIED WITH OR PERFORMED
AFTER THE CLOSING DATE.
SELLER SHALL HAVE PAID ALL FEES AND EXPENSES PAYABLE BY IT TO PURCHASER
PURSUANT TO SECTION 8 HEREOF.
THE CERTIFICATES TO BE SO RATED SHALL HAVE BEEN ASSIGNED RATINGS BY EACH
RATING AGENCY NO LOWER THAN THE RATINGS SPECIFIED FOR EACH SUCH CLASS IN THE
MEMORANDUM AND THE PROSPECTUS SUPPLEMENT.
NO UNDERWRITER SHALL HAVE TERMINATED THE UNDERWRITING AGREEMENT AND NONE
OF THE INITIAL PURCHASERS SHALL HAVE TERMINATED THE CERTIFICATE PURCHASE
AGREEMENT, AND NEITHER THE UNDERWRITERS NOR THE INITIAL PURCHASERS SHALL HAVE
SUSPENDED, DELAYED OR OTHERWISE CANCELLED THE CLOSING DATE.
SELLER SHALL HAVE RECEIVED THE PURCHASE PRICE FOR THE MORTGAGE LOANS
PURSUANT TO SECTION 1 HEREOF.
EACH PARTY AGREES TO USE ITS BEST EFFORTS TO PERFORM ITS RESPECTIVE OBLIGATIONS
HEREUNDER IN A MANNER THAT WILL ENABLE PURCHASER TO PURCHASE THE MORTGAGE LOANS
ON THE CLOSING DATE.
CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
THIS AGREEMENT DULY EXECUTED BY PURCHASER AND SELLER.
A CERTIFICATE OF SELLER, EXECUTED BY A DULY AUTHORIZED OFFICER OF SELLER AND
DATED THE CLOSING DATE, AND UPON WHICH PURCHASER AND ITS SUCCESSORS AND ASSIGNS
MAY RELY, TO THE EFFECT THAT: (I) THE REPRESENTATIONS AND WARRANTIES OF SELLER
IN THIS AGREEMENT ARE
27
TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE
CLOSING DATE WITH THE SAME FORCE AND EFFECT AS IF MADE ON THE CLOSING DATE,
PROVIDED THAT ANY REPRESENTATIONS AND WARRANTIES MADE AS OF A SPECIFIED DATE
SHALL BE TRUE AND CORRECT AS OF SUCH SPECIFIED DATE; AND (II) SELLER HAS
COMPLIED WITH ALL AGREEMENTS AND SATISFIED ALL CONDITIONS ON ITS PART TO BE
PERFORMED OR SATISFIED ON OR PRIOR TO THE CLOSING DATE.
TRUE, COMPLETE AND CORRECT COPIES OF SELLER'S ARTICLES OF ORGANIZATION AND
BY-LAWS.
A CERTIFICATE OF EXISTENCE FOR SELLER FROM THE SECRETARY OF STATE OF NEW YORK
DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE CLOSING DATE.
A CERTIFICATE OF THE SECRETARY OR ASSISTANT SECRETARY OF SELLER, DATED THE
CLOSING DATE, AND UPON WHICH PURCHASER MAY RELY, TO THE EFFECT THAT EACH
INDIVIDUAL WHO, AS AN OFFICER OR REPRESENTATIVE OF SELLER, SIGNED THIS AGREEMENT
OR ANY OTHER DOCUMENT OR CERTIFICATE DELIVERED ON OR BEFORE THE CLOSING DATE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN, WAS AT THE RESPECTIVE
TIMES OF SUCH SIGNING AND DELIVERY, AND IS AS OF THE CLOSING DATE, DULY ELECTED
OR APPOINTED, QUALIFIED AND ACTING AS SUCH OFFICER OR REPRESENTATIVE, AND THE
SIGNATURES OF SUCH PERSONS APPEARING ON SUCH DOCUMENTS AND CERTIFICATES ARE
THEIR GENUINE SIGNATURES.
AN OPINION OF COUNSEL (WHICH, OTHER THAN AS TO THE OPINION DESCRIBED IN
PARAGRAPH 7.6.6 BELOW, MAY BE IN-HOUSE COUNSEL) TO SELLER, DATED THE CLOSING
DATE, SUBSTANTIALLY TO THE EFFECT OF THE FOLLOWING (WITH SUCH CHANGES AND
MODIFICATIONS AS PURCHASER MAY APPROVE AND SUBJECT TO SUCH COUNSEL'S REASONABLE
QUALIFICATIONS):
SELLER IS VALIDLY EXISTING UNDER STATEPLACENEW YORK LAW AND HAS FULL
CORPORATE POWER AND AUTHORITY TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER.
NO CONSENT, APPROVAL, AUTHORIZATION OR ORDER OF ANY FEDERAL COURT OR
GOVERNMENTAL AGENCY OR BODY IS REQUIRED FOR THE CONSUMMATION BY SELLER OF THE
TRANSACTIONS CONTEMPLATED BY THE TERMS OF THIS AGREEMENT EXCEPT ANY APPROVALS AS
HAVE BEEN OBTAINED.
NEITHER THE EXECUTION, DELIVERY OR PERFORMANCE OF THIS AGREEMENT BY
SELLER, NOR THE CONSUMMATION BY SELLER OF ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TERMS OF THIS AGREEMENT (A) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF, OR CONSTITUTES
28
A DEFAULT UNDER, THE ORGANIZATIONAL DOCUMENTS OF SELLER, (B) TO THE KNOWLEDGE OF
SUCH COUNSEL, CONSTITUTES A DEFAULT UNDER ANY TERM OR PROVISION OF ANY MATERIAL
AGREEMENT, CONTRACT, INSTRUMENT OR INDENTURE, TO WHICH SELLER IS A PARTY OR BY
WHICH IT OR ANY OF ITS ASSETS IS BOUND OR RESULTS IN THE CREATION OR IMPOSITION
OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY OF ITS PROPERTY PURSUANT TO THE
TERMS OF ANY SUCH INDENTURE, MORTGAGE, CONTRACT OR OTHER INSTRUMENT, OTHER THAN
PURSUANT TO THIS AGREEMENT, OR (C) CONFLICTS WITH OR RESULTS IN A BREACH OR
VIOLATION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT, WRIT, INJUNCTION OR
DECREE OF ANY COURT OR GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER SELLER OR
ITS ASSETS, EXCEPT WHERE IN ANY OF THE INSTANCES CONTEMPLATED BY CLAUSES (B) OR
(C) ABOVE, ANY CONFLICT, BREACH OR DEFAULT, OR CREATION OR IMPOSITION OF ANY
LIEN, CHARGE OR ENCUMBRANCE, WILL NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY BY SELLER OR MATERIALLY AND
ADVERSELY AFFECT ITS ABILITY TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER OR
RESULT IN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, FINANCIAL
CONDITION, PROPERTIES OR ASSETS OF SELLER, OR IN ANY MATERIAL IMPAIRMENT OF THE
RIGHT OR ABILITY OF SELLER TO CARRY ON ITS BUSINESS SUBSTANTIALLY AS NOW
CONDUCTED.
TO HIS OR HER KNOWLEDGE, THERE ARE NO LEGAL OR GOVERNMENTAL ACTIONS,
INVESTIGATIONS OR PROCEEDINGS PENDING TO WHICH SELLER IS A PARTY, OR THREATENED
AGAINST SELLER, (A) ASSERTING THE INVALIDITY OF THIS AGREEMENT OR (B) WHICH
MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY SELLER OF ITS OBLIGATIONS
UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT.
THIS AGREEMENT IS A VALID, LEGAL AND BINDING AGREEMENT OF SELLER,
ENFORCEABLE AGAINST SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEMENT MAY BE LIMITED BY (1) LAWS RELATING TO BANKRUPTCY, INSOLVENCY,
REORGANIZATION, RECEIVERSHIP OR MORATORIUM, (2) OTHER LAWS RELATING TO OR
AFFECTING THE RIGHTS OF CREDITORS GENERALLY, (3) GENERAL EQUITY PRINCIPLES
(REGARDLESS OF WHETHER SUCH ENFORCEMENT IS CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) OR (4) PUBLIC POLICY CONSIDERATIONS UNDERLYING THE SECURITIES LAWS,
TO THE EXTENT THAT SUCH PUBLIC POLICY CONSIDERATIONS LIMIT THE ENFORCEABILITY OF
THE PROVISIONS OF THIS AGREEMENT THAT PURPORT TO PROVIDE INDEMNIFICATION FROM
LIABILITIES UNDER APPLICABLE SECURITIES LAWS.
Such opinion may express its reliance as to factual matters on,
among other things specified in such opinion, the representations and warranties
made by, and on certificates or other documents furnished by officers of, the
parties to this Agreement.
29
In rendering the opinions expressed above, such counsel may limit
such opinions to matters governed by the federal laws of the
country-regionUnited States and the corporate laws of the State of StateDelaware
and the State of placeStateNew York, as applicable.
SUCH OTHER OPINIONS OF COUNSEL AS ANY RATING AGENCY MAY REQUEST IN CONNECTION
WITH THE SALE OF THE MORTGAGE LOANS BY SELLER TO PURCHASER OR SELLER'S EXECUTION
AND DELIVERY OF, OR PERFORMANCE UNDER, THIS AGREEMENT.
A "10B-5" OPINION OF COUNSEL ADDRESSED TO THE PURCHASER AND THE UNDERWRITERS, IN
FORM REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, AS TO THE
DISCLOSURE PROVIDED BY SELLER TO PURCHASER IN CONNECTION WITH THE CERTIFICATES.
AN OPINION OF COUNSEL ADDRESSED TO PURCHASER AND THE UNDERWRITERS, IN FORM
REASONABLY ACCEPTABLE TO PURCHASER AND THE UNDERWRITERS, THAT SUCH DISCLOSURE
COMPLIES AS TO FORM WITH THE APPLICABLE REQUIREMENTS OF REGULATION AB WITH
RESPECT TO SELLER'S ROLE AS SPONSOR (AS DEFINED IN REGULATION AB) IN CONNECTION
WITH THE CERTIFICATES.
A LETTER FROM DELOITTE & TOUCHE, CERTIFIED PUBLIC ACCOUNTANTS, DATED THE DATE
HEREOF, TO THE EFFECT THAT THEY HAVE PERFORMED CERTAIN SPECIFIED PROCEDURES AS A
RESULT OF WHICH THEY DETERMINED THAT CERTAIN INFORMATION OF AN ACCOUNTING,
FINANCIAL OR STATISTICAL NATURE SET FORTH IN THE MEMORANDUM AND THE PROSPECTUS
SUPPLEMENT AGREES WITH THE RECORDS OF SELLER.
SUCH FURTHER CERTIFICATES, OPINIONS AND DOCUMENTS AS PURCHASER MAY REASONABLY
REQUEST.
AN OFFICER'S CERTIFICATE OF PURCHASER, DATED AS OF THE CLOSING DATE, WITH THE
RESOLUTIONS OF PURCHASER AUTHORIZING THE TRANSACTIONS DESCRIBED HEREIN ATTACHED
THERETO, TOGETHER WITH CERTIFIED COPIES OF THE CHARTER, BY-LAWS AND CERTIFICATE
OF GOOD STANDING OF PURCHASER DATED NOT EARLIER THAN 30 DAYS PRIOR TO THE
CLOSING DATE.
SUCH OTHER CERTIFICATES OF PURCHASER'S OFFICERS OR OTHERS AND SUCH OTHER
DOCUMENTS TO EVIDENCE FULFILLMENT OF THE CONDITIONS SET FORTH IN THIS AGREEMENT
AS SELLER OR ITS COUNSEL MAY REASONABLY REQUEST.
AN EXECUTED XXXX OF SALE IN THE FORM ATTACHED HERETO AS EXHIBIT 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
30
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx,
Senior Managing Director, Commercial Mortgage Department (with a copy to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department) (or
such other address as may hereafter be furnished in writing by Purchaser), or if
(ii) to Seller, addressed to Seller at Xxxxxx Xxxxxxx Mortgage Capital Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Friend (or to such
other address as Seller may designate in writing).
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver such
instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF placeStateNEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS
31
OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to the
benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. The rights and obligations of Seller under this
Agreement shall not be assigned by Seller without the prior written consent of
Purchaser, except that any person into which Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which Seller is a party, or any person succeeding to the entire
business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof (other than
the Letter of Understanding (solely with respect to those portions of this
Agreement that are not assigned to the Trustee), the Indemnification Agreement
and the Pooling and Servicing Agreement), 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.
32
IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:_________________________________
Name: __________________________
Title: __________________________
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:_________________________________
Name: __________________________
Title: __________________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
1-1
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material respects as
of the date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is
a whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage;
provided, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignment in favor of the Trustee shall be required but instead Seller has
agreed to take all actions as are necessary to cause the Trustee to be shown as
the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS. Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent
2-1
instruments, establishes and creates a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable security interest in favor of the
holder thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the case of
a Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no such assignment in favor of the
Trustee shall be required but instead Seller has agreed to take all actions as
are necessary to cause the Trustee to be shown as the owner of the related
Mortgage on the record of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real property
that are set forth on Schedule A to Exhibit 2), nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except with respect to
Mortgage Loans secured primarily by unimproved land: (i) with respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
2-2
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage Loan
after all advances of principal. Each Title Policy insures that the related
Mortgage is a valid first priority lien on such Mortgaged Property, subject only
to Permitted Encumbrances. Each Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and no material claims have been made thereunder and no
claims have been paid thereunder. No holder of the related Mortgage has done, by
act or omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. To Seller's knowledge, the
insurer issuing such Title Policy is qualified to do business in the
jurisdiction in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so escrowed
have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the
2-3
holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (1) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (2) no fees or expenses
are payable to such trustee by Seller, Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with
respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-Off Date, an
environmental site assessment prepared to ASTM standards,
or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the
origination or the sale of the related Mortgage Loan, a
report of each such assessment (or the most recent
assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to, or on
behalf of, Purchaser or its designee, and Seller has no
knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property
that was not disclosed in such report. Each Mortgage
requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence
of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party
not related to the Mortgagor was identified as the
responsible party for such condition or circumstance or
(ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is
remediated or (iii) the related Mortgagor was required
either to provide additional security that was deemed to
be sufficient by the originator in light of the
circumstances and/or to establish an operations and
maintenance plan. Each Mortgage Loan set forth on Schedule
C to this Exhibit 2 (each, a "Schedule C Loan") is the
subject of a Secured Creditor Impaired Property Policy,
issued by the issuer set forth on Schedule C (the "Policy
Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on
Schedule A to this Exhibit 2, with respect to each
Schedule C Loan, (i) the Environmental Insurance Policy is
in full force and effect, (ii)(a) a property condition or
engineering report was prepared with respect to lead based
paint ("LBP") and radon gas ("RG") at each Mortgaged
Property that is used as a multifamily dwelling, and with
respect to asbestos containing materials ("ACM") at each
related Mortgaged Property and (b) if such report
disclosed the existence of a material and adverse LBP, ACM
or RG environmental condition or circumstance affecting
the related Mortgaged Property, the related Mortgagor (A)
was required to remediate the identified condition prior
to closing the Mortgage Loan or provide additional
security, or establish with the lender a reserve from loan
2-4
proceeds, in an amount deemed to be sufficient by Seller
for the remediation of the problem and/or (B) agreed in
the Mortgage Loan documents to establish an operations and
maintenance plan after the closing of the Mortgage Loan,
(iii) on the effective date of the Environmental Insurance
Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than
the existence of LBP, ACM or RG) that was not disclosed to
the Policy Issuer in one or more of the following: (a) the
application for insurance, (b) a borrower questionnaire
that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer
and (iv) the premium of any Environmental Insurance Policy
has been paid through the maturity of the policy's term
and the term of such policy extends at least five years
beyond the maturity of the Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an
environmental site assessment prepared to ASTM standards
within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value
of such Mortgaged Property is materially and adversely
affected or (2) under applicable federal, state or local
law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or
transferred or (b) the presence of such Hazardous Material
could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property,
or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous
Material or the hazard created thereby at a cost
materially and adversely affecting the value of the
Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and
local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws
does not have a material adverse effect on the value of
such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current
tenant thereon, has received any notice of violation or
potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated
biphenyls or related or similar materials, and any other
substance or material as may be defined as a hazardous or
toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order,
including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution
Control Act as amended (33 U.S.C. xx.xx. 1251 et seq.),
the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
2-5
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage to be, insured by (a) a fire and extended
perils insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage Loan
consistent with its normal commercial mortgage lending practices, against other
risks insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the Mortgaged
Property, and not less than the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property, and the policy
contains no provisions for a deduction for depreciation; (b) a business
interruption or rental loss insurance policy, in an amount at least equal to six
months of operations of the Mortgaged Property estimated as of the date of
origination by the originator of such Mortgage Loan consistent with its normal
commercial lending practices; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards and the Federal Emergency Management Agency requires flood insurance to
be maintained); and (d) a comprehensive general liability insurance policy in
amounts as are generally required by commercial mortgage lenders, and in any
event not less than $1 million per occurrence. Such insurance policy contains a
standard mortgagee clause that names the mortgagee as an additional insured in
the case of liability insurance policies and as a loss payee in the case of
property insurance policies and requires prior notice to the holder of the
Mortgage of termination or cancellation. No such notice has been received,
including any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance and,
upon such Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. Each Mortgage provides that casualty
insurance proceeds will be applied (a) to the restoration or repair of the
related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and
2-6
warranty, real property taxes and assessments shall not be considered unpaid
until the date on which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge,
a debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured in
whole or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest
in the Ground Lease but not by the related fee interest in such Mortgaged
Property (the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease since
the origination of the related Mortgage Loan, with the exception
of material changes reflected in written instruments that are a
part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented
thereto, and Seller has received no notice that an event of
default has occurred thereunder, and, to Seller's knowledge,
there exists no condition that, but for the passage of time or
the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
2-7
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a
copy of such notice has been delivered to such holder and the
lessor has offered or is required to enter into a new lease with
such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage
Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation
award awarded to the holder of the ground lease interest will be
applied either (A) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of the lessee thereunder for any reason, or in any manner, which
would materially adversely affect the security provided by the
related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage
2-8
Loan and either: (a) such Mortgage Loan is secured by an interest in real
property having a fair market value (i) at the date the Mortgage Loan was
originated, at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the lien of
the related Mortgage except, in each case, for liens insured against by the
Title Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or more
other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was included
in the appraisal for such Mortgaged Property, and/or generates income from the
lien of the related Mortgage except upon payment in full of all amounts due
under the related Mortgage Loan or in connection with the defeasance provisions
of the related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related
2-9
Mortgaged Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a predetermined or objectively
determinable release price and prepayment consideration in connection therewith.
Except as described in the first sentence hereof and for those Mortgage Loans
identified on Schedule A, no Mortgage Loan permits the full or partial release
or substitution of collateral unless the mortgagee or servicer can require the
Borrower to provide an opinion of tax counsel to the effect that such release or
substitution of collateral (a) would not constitute a "significant modification"
of such Mortgage Loan within the meaning of Treas. Reg. ss.1.1001-3 and (b)
would not cause such Mortgage Loan to fail to be a "qualified mortgage" within
the meaning of Section 860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage
Loan contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part of
each Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
2-10
31. Actions Concerning Mortgage Loans. To the knowledge of
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor or
related Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all federal
and state laws applicable to the use and operation of the related Mortgaged
Property and (b) if the operator of the Mortgaged Property participates in
Medicare or Medicaid programs, the facility is in compliance in all material
respects with the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any material
portion thereof, or a controlling interest in the related Mortgagor, is
transferred, sold or encumbered by a junior mortgage or deed of trust; provided,
however, that certain Mortgage Loans provide a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a third
party or parties related to the Mortgagor upon the Mortgagor's satisfaction of
certain conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity
2-11
represented in the related Mortgage Loan documents, substantially to the effect
that it does not have any assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be
defeased until the date that is more than two years after the Closing Date, (ii)
that it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as amended)
or any direct non-callable security issued or guaranteed as to principal or
interest by the United States that will provide interest and principal payments
sufficient to satisfy scheduled payments of interest and principal as required
under the related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination
of each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that
has a principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did
2-12
not as of the date of origination of the Mortgage Loan, and, to Seller's
knowledge, do not, as of the date hereof, specifically exclude Acts of Terrorism
from coverage, or if such coverage is excluded, it is covered by a separate
terrorism insurance policy. With respect to each of the Mortgage Loans, the
related Mortgage Loan documents do not expressly waive or prohibit the mortgagee
from requiring coverage for acts of terrorism or damages related thereto, except
to the extent that any right to require such coverage may be limited by
commercially reasonable availability, or as otherwise indicated on Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan
as part of a plan to transfer the underlying Mortgaged Property to Purchaser,
and Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
2-13
SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities
Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 18, 2006 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) 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 following
property: the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements,
and title, hazard and other insurance policies, all distributions with
respect thereto payable after the Cut-Off Date, all substitute or
replacement Mortgage Loans and all distributions with respect thereto,
and the Mortgage Files;
(b) 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 (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth
on Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this
Xxxx of Sale to be duly executed and delivered on this 18th day of October,
2006.
SELLER: XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By:
________________________________
Name:___________________________
Title:__________________________
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:_________________________________
Name:___________________________
Title:__________________________
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
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 CMSA OPERATING STATEMENT ANALYSIS REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
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:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2006-TOP24
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LaSalle Bank National
Association, as Trustee and Custodian for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 ("Trustee"), under that certain Pooling and Servicing Agreement dated
as of October 1, 2006 (the "Pooling and Servicing Agreement"), does hereby
nominate, constitute and appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Master Servicer under the Pooling and Servicing Agreement ("Xxxxx Fargo Bank"),
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 Xxxxx Fargo Bank to service and administer the Mortgage Loans (as
defined in the Pooling and Servicing Agreement) in connection with the
performance by Xxxxx Fargo Bank of its duties as Master Servicer under the
Pooling and Servicing Agreement, giving and granting unto Xxxxx Fargo Bank 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 Xxxxx Fargo Bank 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 , 2006.
LaSalle Bank National Association, as
Trustee and Custodian for Bear Xxxxxxx
Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24
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:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
ARCAP SERVICING, INC.
0000 Xxxxx XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: [ ]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LaSalle Bank National
Association, as Trustee and Custodian for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP24 ("Trustee"), under that certain Pooling and Servicing Agreement dated
as of October 1, 2006 (the "Pooling and Servicing Agreement"), does hereby
nominate, constitute and appoint ARCAP SERVICING, INC., as Special Servicer
under the Pooling and Servicing Agreement ("ARCAP"), 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 ARCAP to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by ARCAP of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting unto ARCAP 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 ARCAP 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 __________, 2006.
LaSalle Bank National Association, as
Trustee and Custodian for Bear Xxxxxxx
Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24
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 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:
7. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
8. 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)
9. How will title be held
10. Source of cash for down payment
11. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and XXXX xxx Xxx-xxxxx XXX XXXX
00. 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% - $
-------------------------------------------- ---------------------
Xxxxx Fargo, Master Serv. 10% - $
-------------------------------------------- ---------------------
ARCap, 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:
8. 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.
9. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
10. 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
11. 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);
12. Explain results of credit checks, legal searches and banking credit
references (two required)
13. If Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
14. 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)
2. 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)
3. Describe any material issues requiring remediation contained in original
reports
4. Describe current status of issue and remediation
Escrow Status:
2. Explain status of all reserves
Property Management Summary:
3. Who is proposed property management firm
4. Background and Experience
Collateral Valuation:
3. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
4. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. 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:
3. STATE RECOMMENDATION FOR APPROVAL.
4. 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:
ARCAP SERVICING, INC., acting solely in its capacity as
Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Schedule of Exhibits to Assumption Submission
16. Financial statements of purchasing entity and any guarantors (audited, if
available)
17. Financial statement of selling entity only if available
18. Bank and /or credit references for transferee
19. Credit report for principal(s) of the proposed borrowing entity.
20. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
21. Income & Expense Statement for Mortgaged Property for previous two (2) years
to the extent available
22. Most recent Property Inspection report
23. Original Asset Summary for Mortgaged Property
24. Purchase and SaleAgreement
25. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
26. Proposed property management agreement
27. Description and source of equity being used for the purchase, if available
28. Most recent Rent Roll
29. Copy of Promissory Note, Mortgage and any Loan Agreement
30. 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:
9. 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
10. State amount and purpose of Lien/Financing
11. Interest Rate
12. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
13. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
14. Collateral pledged or mortgaged as security:
15. 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
16. 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)
2. 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:
2. Explain status of all Reserves
Collateral Valuation:
3. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
4. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. 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:
3. STATE RECOMMENDATION FOR APPROVAL.
4. 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:
ARCAP SERVICING, INC., acting solely in its capacity as
Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
9. Most recent Income & Expense Statement for property and operating statement
review
10. Original Asset Summary for Mortgaged Property
11. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
12. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
13. Copy of Note, Mortgage and any Loan Agreement
14. Copy of subordinate loan documents in substantially the form to be executed
15. Most recent Rent Roll.
16. Other items as required by the description set forth above
EXHIBIT W
[Restricted Servicer Reports]
[Available at CMSA Website Version 3.0 dated 4/1/2003]
EXHIBIT X
[Unrestricted Servicer Reports]
[Available at CMSA Website Version 3.0 dated 4/1/2003]
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: Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24
In accordance with the Pooling and Servicing Agreement, dated as of
October 1, 2006 (the "Agreement"), by and among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as Depositor, Xxxxx Fargo Bank, National
Association, as Master Servicer, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee and Custodian
and Xxxxx Fargo Bank, N.A. as Paying Agent and Certificate Registrar
(the "Paying Agent"), 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 Paying Agent'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 Paying Agent'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 Paying
Agent, 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
Paying Agent 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
(Xxxxx Fargo)
__________________________________
PRIMARY SERVICING AGREEMENT
DATED AS OF _________, ____
__________________________________
[_______________________________________]
AS MASTER SERVICER,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS PRIMARY SERVICER,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
DATED AS OF NOVEMBER 1, 2006
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS MASTER SERVICER,
LNR PARTNERS, INC.
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION
AS TRUSTEE AND CUSTODIAN
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP24
TABLE OF CONTENTS
Page
ARTICLE I.............................................................DEFINITIONS 1
ARTICLE II......................................................PRIMARY SERVICING 8
Section 2.1.............................................. Primary Servicing 8
Section 2.2............................................... Standard of Care 15
Section 2.3........ Compensation and Other Payments to the Primary Servicer 15
Section 2.4................ Primary Servicer Representations and Warranties 16
ARTICLE III...........................................DOCUMENTS AND OTHER MATTERS 17
Section 3.1......................... Segregation of Mortgage Loan Documents 17
Section 3.2.......... Access to Documents; Provision of Certain Information 17
ARTICLE IV.............................................MASTER SERVICER ASSISTANCE 17
Section 4.1..................................... Master Servicer Assistance 17
Section 4.2...............................Specially Serviced Mortgage Loans 18
ARTICLE V...................................ADDITIONAL PRIMARY SERVICER COVENANTS 18
Section 5.1........................................... Notice of Litigation 18
Section 5.2....................................... No Personal Solicitation 18
Section 5.3.........Fidelity Bond and Errors and Omissions Insurance Policy 19
Section 5.4 Primary Servicer's Financial Statements and Related Information 20
Section 5.5................................................... No Advancing 20
Section 5.6............................................... REMIC Compliance 20
Section 5.7.............................................. Inspection Rights 20
Section 5.8..............................................Authorized Officer 20
Section 5.9..............................................Additional Reports 21
Section 5.10....................Prepayment Interest Shortfalls and Excesses 21
Section 5.11.......................................................Consents 22
Section 5.12......Quarterly Servicing Accounts Reconciliation Certification 22
Section 5.13..............Exchange Act Reports; Annual Compliance Documents 22
ARTICLE VI....PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION OBLIGATIONS 23
Section 6.1....................................... Primary Servicer Default 23
Section 6.2.................................................... Termination 24
Section 6.3................................... Post-Termination Obligations 25
Section 6.4......................................... Additional Termination 26
ARTICLE VII........................................................SUBCONTRACTORS 26
-i-
TABLE OF CONTENTS
(continued)
Page
ARTICLE VIII............PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER 26
ARTICLE IX........................................................INDEMNIFICATION 27
Section 9.1................................... Primary Servicer's Indemnity 27
ARTICLE X...........................................................MISCELLANEOUS 27
Section 10.1...................................................Severability 27
Section 10.2.....................................Rights Cumulative; Waivers 28
Section 10.3.......................................................Headings 28
Section 10.4...................................................Construction 28
Section 10.5.....................................................Assignment 28
Section 10.6...........................................Prior Understandings 29
Section 10.7...........................................Integrated Agreement 30
Section 10.8...................................................Counterparts 30
Section 10.9.................................................Governing Laws 30
Section 10.10.......................................................Notices 30
Section 10.11.....................................................Amendment 30
Section 10.12.........................................................Other 31
Section 10.13.........................................Benefits of Agreement 31
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This PRIMARY SERVICING AGREEMENT, dated and effective as of _________,
____, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (in the capacity of
primary servicer, the "Primary Servicer") and
[_______________________________________], a _________________________, acting
solely in its capacity as Master Servicer under the Pooling and Servicing
Agreement (as defined below) (the "Master Servicer").
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as depositor, Xxxxx Fargo Bank,
National Association, as master servicer, LNR Partners, Inc., as special
servicer, Xxxxx Fargo Bank, National Association, as paying agent and
certificate registrar, and LaSalle Bank National Association, as trustee, have
entered into a Pooling and Servicing Agreement, dated as of November 1, 2006,
relating to the Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24
(as amended, from time to time, the "Pooling and Servicing Agreement"), a copy
of which is attached hereto as Exhibit A; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
and provide, on behalf of the Master Servicer, the necessary servicing of such
mortgage loans performed in a manner consistent with the Servicing Standard and
in a manner consistent with this Agreement and the Pooling and Servicing
Agreement from the Closing Date until this Agreement is terminated in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Primary Servicer and the Master Servicer hereby agree as
follows:
I.
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided,
however, that terms whose meanings are ascribed in the Pooling and Servicing
Agreement and by the provisions thereof pertain to one or more mortgage loans
that are the subject of the Pooling and Servicing Agreement shall be construed
for purposes of this Agreement to pertain to the related Mortgage Loan(s) that
are the subject of this Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan, the
related co-lender agreement, by and between the holder of the related Mortgage
Loan and the holder of the related B Note, setting forth the relative rights of
such holders, as the same may be further amended from time to time in accordance
with the terms thereof.
"A/B Mortgage Loan": Any Mortgage Loan serviced under this Agreement that
is divided into a senior mortgage note and a subordinated mortgage note, which
senior mortgage note is included in the Trust.
"ABS Issuing Entity": Each trust or entity that has issued asset-backed
securities that directly or indirectly evidence interests in or are secured by a
pledge of one or more mortgage
loans serviced hereunder (regardless of whether such mortgage loan constitutes a
"Mortgage Loan" under the other provisions of this Agreement), it being
understood that the TOP24 Trust constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": The Primary Servicing Fee and the Excess
Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and annual
financial statements and rent rolls collected with respect to the Mortgaged
Properties securing the Mortgage Loans and A/B Mortgage Loans, to be made
available, within 30 days following receipt thereof by the Primary Servicer, to
the Master Servicer (and, with respect to an A/B Mortgage Loan, the holder of
the B Note, if required by the applicable A/B Intercreditor Agreement), the
Operating Adviser, and, to any of the following Persons upon written
notification from Master Servicer of a request for such information and the
identity and address of the requesting Person requesting: the Rating Agencies,
the Special Servicer, or the Trustee.
"Applicable Depositor": The Depositor or the depositor with respect to an
ABS Issuing Entity other than the TOP24 Trust.
"B Note": 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 A/B
Intercreditor Agreement. There are no B Notes relating to this Agreement.
"Category 1 Consent Aspect": A condition, term or provision of a Category
1 Request that requires, or specifies a standard of, consent, or approval of the
applicable mortgagee under the Loan Documents, but shall explicitly exclude any
such conditions, terms or provisions enumerated in (a) an escrow or reserve
agreement for disbursements made from an escrow or reserve account or an
extension of time to complete repairs, replacements or improvements in
accordance with the terms and conditions set forth in Exhibit B-2(c); (b) an
assignment and assumption request covered under Section A.1.(c)(ii) of Exhibit
B-2(c) of this Agreement; (c) an additional lien, monetary encumbrance or
mezzanine financing request covered under Section A.1.(c)(iii) of Exhibit B-2(c)
of this Agreement; or (d) a defeasance request covered under Section A.1.(c)(i)
of Exhibit B-2(c) of this Agreement.
"Category 1 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Category 2 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Category 3 Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"CMSA Comparative Financial Status Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit W.
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"CMSA Delinquent Loan Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Financial File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit W.
"CMSA Historical Liquidation Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Historical Loan Modification Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package and the form
of which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Investor Reporting Package": The Commercial Mortgage Securities
Association Investor Reporting Package, certain forms of which are attached to
the Pooling and Servicing Agreement as Exhibits W and X and elements of which
shall be produced as provided in Section 2.1(c) and the Task Description.
"CMSA Loan Level Reserve/LOC Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Periodic Update File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit X.
"CMSA Loan Setup File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit X.
"CMSA Property File": A report which is one element of the CMSA Investor
Reporting Package and the form of which is attached to the Pooling and Servicing
Agreement as Exhibit W.
"CMSA Quarterly Financial File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is substantially similar to the
form attached to the Pooling and Servicing Agreement as Exhibit W.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W the
contents of which are set forth in Section 8.11(h) of the Pooling and Servicing
Agreement.
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"Day One Report": With respect to each Mortgage Loan and A/B Mortgage
Loan, a statement in the form of Exhibit B-1(f) setting forth the scheduled
payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan or A/B Mortgage Loan and on account of what type of payment such
amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan, a
Category 2 Request shall, for purposes of this Agreement, be deemed to be a
Category 1 Request and shall be processed, as such, by the Primary Servicer.
"Distribution Date": With respect to the TOP24 Trust, as defined in the
Pooling and Servicing Agreement. With respect to any other ABS Issuing Entity
(as the context requires), the monthly date on which distributions are made on
the related certificates under the related pooling and servicing agreement.
"Escrow Status Report": A brief statement to be delivered to the Persons
designated in Section 5.1(g) of the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the holder of the B Note, if required by the
applicable A/B Intercreditor Agreement, within twenty (20) days following the
first anniversary of the Closing Date, for each of the Mortgage Loans included
on Schedule VII of the Pooling and Servicing Agreement (and related B Notes),
about the status of the work or project based upon the most recent information
provided by the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each Mortgage Loan,
the portion of the related Excess Servicing Fee Rate applicable to such month
(determined in the same manner as the applicable Mortgage Rate determined for
such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance
of such Mortgage Loan immediately before the Due Date occurring in such month,
but prorated for the number of days during the calendar month for such Mortgage
Loan for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect to
each Mortgage Loan.
"Lease": A lease, proposed lease, or amendment, modification, restatement,
extension or termination of a lease, in each case of space and any other
ancillary and associated rights in a building or on the real estate constituting
all or a portion of a Mortgaged Property.
"Loan Documents": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents contained
in the Mortgage File for the Mortgage Loans and any A/B Mortgage Loans.
"Materiality Determination": With respect to a Category 1 Request, the
determination by Primary Servicer, exercised in good faith using the "Servicing
Standard" set forth in the Pooling and Servicing Agreement, whether a Category 1
Consent Aspect is material and should
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be referred to the Special Servicer for consent in accordance with this
Agreement and the Pooling and Servicing Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all amendments
and modifications thereof, identified on the schedule attached to this Agreement
as Schedule I, as amended from time to time, and conveyed, transferred, sold,
assigned to or deposited with the Trustee pursuant to Section 2.1 or Section 2.3
of the Pooling and Servicing Agreement, and Mortgage Loan shall also include any
Defeasance Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Servicing Officer pursuant to this Agreement.
"Operating Statement Analysis": A report which is one element of the
MBA/CMSA Methodology for Analyzing and Reporting Property Income Statements,
which is part of the CMSA Investor Reporting Package and the form of which is
attached to the Pooling and Servicing Agreement as Exhibit W.
"Payment and Collection Description": The description of the obligations
of the Primary Servicer with respect to collection and remittance of payments on
the Mortgage Loans and the A/B Mortgage Loans, as more particularly described in
Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be submitted by
Primary Servicer to the Master Servicer with respect to reporting about
collection and remittance of payments, delinquencies, status of real estate
taxes, status of insurance and status of UCC financing statements for the
Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of the B
Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"POA Notice": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not become
Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on which a
Servicing Transfer Event has occurred, which obligations are more particularly
described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the
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income and earnings on which shall inure entirely to the benefit of Primary
Servicer. The Primary Servicer Collection Account shall be established in the
name of "Xxxxx Fargo Bank, National Association, as Primary Servicer for
_______________________________________, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As defined in
Section 5.3(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.3(a) hereof.
"Primary Servicer Form 8-K Information Report": As defined in Section
5.13(c)(i) hereof.
"Primary Servicer Form 10-D Information Report": As defined in Section
5.13(c)(ii) hereof.
"Primary Servicer Form 10-K Information Report": As defined in Section
5.13(c)(iii) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and A/B Mortgage Loans and
(b) all other servicing documents and records in possession of Primary Servicer
that relate to or are used for the servicing of the Mortgage Loans and A/B
Mortgage Loans and that are not required to be part of the applicable Mortgage
File.
"Primary Servicing Fee": For each calendar month, as to each Mortgage Loan
and each B Note, the portion of the Primary Servicing Fee Rate applicable to
such month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan (or the Principal Balance in the case of
each B Note) immediately before the Due Date occurring in such month, but
prorated for the number of days during the calendar month for such Mortgage Loan
for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with respect to
each Mortgage Loan.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and A/B Mortgage Loans whose name and specimen signature
appear on a list of servicing officers or employees furnished to the Master
Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2 hereof.
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"Property Inspection Description": The description of the obligations of
the Primary Servicer with respect to inspection of the Mortgaged Properties for
each of the Mortgage Loans and the A/B Mortgage Loans as more particularly
described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.12 hereof.
"Regulations": The rules, regulations and policy statements of the SEC as
in effect from time to time.
"Requirements List": As defined in the Post Closing Matters Description in
Exhibit B-2.
"SEC": The Securities and Exchange Commission.
"Services": Those activities to be provided by the Primary Servicer for
the Servicing of the Mortgage Loans and the A/B Mortgage Loans pursuant to the
provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan and any A/B Mortgage Loan,
the right and obligation of the Primary Servicer to administer such Mortgage
Loan and any A/B Mortgage Loan in accordance with the provisions hereof.
"Servicing Documents": The Master Servicer Servicing Documents and Primary
Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, the Primary
Servicer shall service and administer the Mortgage Loans and the A/B Mortgage
Loans that it is obligated to service and administer pursuant to this Agreement
on behalf of the Master Servicer and in the best interests of and for the
benefit of the Certificateholders and, with respect to each B Note, the
holder(s) of each such B Note (as determined by the Primary Servicer in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and A/B Mortgage
Loans and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in its
general mortgage servicing and REO property management activities on behalf of
third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and A/B Mortgage Loans;
and without regard to: (I) any other relationship that the Primary Servicer, or
any Affiliate thereof, may have with the related Mortgagor; (II) the ownership
of any Certificate or B Note by the Primary Servicer, or any Affiliate thereof;
(III) the Master Servicer's obligation to make Advances; and (IV) the right of
the Primary Servicer (or any Affiliate thereof) to receive reimbursement of
costs, or the sufficiency of any compensation payable to it, hereunder or with
respect to any particular transaction; provided, however, that in no event shall
the foregoing standards be less than the applicable provisions of the Servicing
Standard set forth in the Pooling
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and Servicing Agreement and with respect to an A/B Mortgage Loan, the servicing
standards set forth in the related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or proposed
to cover more than the greater of either (a) 20,000 net rentable square feet or
(b) twenty percent (20%) of the net rentable square footage of the Mortgaged
Property.
"Significant Obligor": A "significant obligor" within the meaning of Item
1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement with
respect to a Lease on a form customarily used by Primary Servicer with respect
to Mortgaged Properties of similar type and consistent with the Servicing
Standard.
"Special Servicer": LNR Partners, Inc. or any successor thereto as special
servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Master Servicer
upon the termination of the Primary Servicer resulting from any Primary Servicer
Default, if any, who shall thereafter perform the Services with respect to the
Mortgage Loans and the A/B Mortgage Loans; provided, that the Master Servicer
shall perform all Services with respect to the Mortgage Loans and the A/B
Mortgage Loans until such Person, if any, is selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans and the
A/B Mortgage Loans as set forth in Exhibit B-4 attached to this Agreement.
"TOP24 Trust": The trust established under the Pooling and Servicing
Agreement.
"Trustee": LaSalle Bank National Association or any successor thereto as
trustee under the Pooling and Servicing Agreement
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II.
PRIMARY SERVICING
A. Primary Servicing From the Closing Date until the Primary Servicing
Termination Date, Master Servicer hereby authorizes and directs Primary Servicer
to service each Mortgage Loan and each A/B Mortgage Loan as primary servicer on
behalf of and at the direction of the Master Servicer as provided in this
Agreement. The Services shall consist of the following:
a. Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements under the Task Description, the Post
Closing Matters Description, the Payment and Collection Description and
the Payment and Mortgage Loan Status Reports, in each case in accordance
with the terms of this Agreement and, with respect to each B Note, the
terms of the related A/B Intercreditor Agreement, and in a manner not
inconsistent with the Pooling and Servicing Agreement. Primary Servicer
shall also perform the obligations to which it has expressly agreed under
the Pooling and Servicing Agreement and the Master Servicer's obligations
set forth in Sections 2.1(c), 2.1(d), that portion of 5.1(g) relating to
the Escrow Status Report, 8.11(i), if applicable, and 8.14 of the Pooling
and Servicing Agreement relating to Annual Statement and Rent Roll
Reporting with respect to the Mortgage Loans and the A/B Mortgage Loans.
b. Master Servicer and Primary Servicer agree and acknowledge that
the Task Description is a chart that enumerates a list of tasks and the
general allocation of responsibility of servicing obligations between the
Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description.
c. Without limiting the foregoing, Primary Servicer shall collect
and remit payments on the Mortgage Loans and the A/B Mortgage Loans in
accordance with the Payment and Collection Description. For the purposes
of this Agreement, the "Payment and Collection Description" shall
encompass all of the following responsibilities and obligations set forth
in the following subsections (i) through (viii) and subsection (xii):
(1) On or prior to the Closing Date, the Primary Servicer
shall establish a Primary Servicer Collection Account, and give the
Master Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained and the account number of the Primary Servicer
Collection Account. Primary Servicer may direct the investment of
funds on deposit in the Primary Servicer Collection Account subject
to and in accordance with the criteria and requirements set forth in
the applicable A/B Intercreditor Agreement, as they relate to a
particular B Note and those set forth
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in the Pooling and Servicing Agreement relating to the Collection
Account established thereunder (construed as if the Primary Servicer
Collection Account were such Collection Account), including without
limitation the obligation, if any, to deposit into such account the
amount of any investment losses to the extent required in the
Pooling and Servicing Agreement and, with respect to each B Note,
the terms of the related A/B Intercreditor Agreement.
(2) The Primary Servicer shall make efforts consistent with
the Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans and the A/B Mortgage Loans (except for
payments due on or prior to the Cut-Off Date), as well as any
required Principal Prepayments, Prepayment Premiums, late charges,
Insurance Proceeds, Condemnation Proceeds and any and all other
amounts due from the Mortgagor or a third party with respect to the
Mortgage Loans pursuant to the Loan Documents; provided, however,
that with respect to any payments that are required under the terms
of the applicable loan documents to be made directly to a Person
other than the holder of the related Mortgage Loan, the Primary
Servicer shall use efforts consistent with the Servicing Standard to
cause such payments to be made.
(3) The Primary Servicer shall deposit all such payments
received with respect to each A/B Mortgage Loan and each Mortgage
Loan (less any related Aggregate Servicing Fee and any other
payments due to Primary Servicer under this Agreement with respect
to such Mortgage Loan) into the Primary Servicer Collection Account
on or before the next Business Day after receiving each such
payment. With respect to funds deposited into the Primary Servicer
Collection Account for each A/B Mortgage Loan, on or before the end
of the third Business Day after the Primary Servicer receives such
funds the Primary Servicer shall determine, in accordance with the
provisions of the applicable A/B Intercreditor Agreement, the amount
(if any) of such funds required to be paid to the holder of the
related B Note (less any primary servicing fee or other fee, if any,
agreed to be paid by the holder of such B Note to the Primary
Servicer pursuant to the applicable A/B Intercreditor Agreement or
other agreement between the Primary Servicer and such B Note holder,
together with any other payments related to such B Note, which are
payable to the Primary Servicer). Such amounts shall be paid to each
holder of a B Note, at the times and in the manner required pursuant
to the provisions of the applicable A/B Intercreditor Agreement.
(4) Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the
B Note, the Primary Servicer shall remit to the Master Servicer from
the Primary Servicer Collection Account, by wire transfer of
immediately available funds, all funds in such account (other than
income and earnings on such account), and shall not withdraw funds
therefrom for any other purpose, except to withdraw amounts required
to be paid to the holder of the B Note and any other amounts
deposited therein by error, as follows: (1) in the case of any
payments received and collected during a Collection Period on or
before the Determination Date for such
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Collection Period, Primary Servicer shall remit such payments on
such Determination Date; and (2) in the case of any payments
received and collected by Primary Servicer after the Determination
Date for such Collection Period, Primary Servicer shall remit all
such payments on the first Business Day following receipt of the
amount of any such payments; provided, however, that notwithstanding
any contrary provision of clause (1) or clause (2) all of the
following provisions shall apply:
(a) in the case of any payment received on a
Determination Date for a Collection Period, Primary Servicer
shall (i) provide Master Servicer with immediate notice of
Primary Servicer's receipt of such payment and (ii) shall use
its reasonable best efforts to remit such payment to Master
Servicer on the date of receipt and in any event shall remit
such payment to Master Servicer within one Business Day
following receipt (and Primary Servicer shall in any event
provide Master Servicer with immediate notice of Primary
Servicer becoming aware that any Principal Prepayment is to be
made on a Determination Date);
(b) any Scheduled Payment due during a Collection Period
but received after the end of such Collection Period shall be
remitted by Primary Servicer within one Business Day following
Primary Servicer's receipt of such Scheduled Payment;
(c) Primary Servicer shall use its reasonable best
efforts to remit to Master Servicer on the date of receipt of,
and in any event shall remit to Master Servicer within one
Business Day following receipt of, any unscheduled payments or
Balloon Payments that would result in a Prepayment Interest
Shortfall; and
(d) any Scheduled Payment received and collected during
a Collection Period, but due on a Due Date occurring after the
end of such Collection Period, shall be remitted on the
Determination Date for the Collection Period in which such Due
Date occurs.
(5) In the event any payments received by Primary Servicer
becomes NSF after the monies associated with that payment have been
remitted to the Master Servicer, the Master Servicer will return
such moneys to Primary Servicer by wire transfer in immediately
available funds within one Business Day of notice from the Primary
Servicer. If the Primary Servicer fails to remit to the Master
Servicer when due the total pool remittance required to be remitted
under this Agreement (whether or not such failure constitutes a
Primary Servicer Default), then interest shall accrue on the amount
of the total pool remittance and the Primary Servicer shall promptly
pay such interest to the Master Servicer, at a per annum rate equal
to the Advance Rate from and including the date when such remittance
was required to be made to but excluding the day when such
remittance is actually made. If the Primary Servicer fails to remit
a single loan remittance more than five (5) days after the single
loan remittance was received
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by the Primary Servicer, then interest shall accrue on the amount of
such single loan remittance and the Primary Servicer shall promptly
pay such interest to the Master Servicer, at a per annum rate equal
to the Advance Rate from and including the date when such remittance
was required to be made to but excluding the date when such
remittance is actually made.
(6) With respect to escrow or reserve payments as listed on
the Task Description, the Primary Servicer shall collect escrow or
reserve amounts with respect to the Mortgage Loans and A/B Mortgage
Loans, and shall deposit such funds in an escrow account, which
shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real
estate taxes, insurance and reserves, and escrows for repairs,
replacements, principal and interest payments and lease payments and
any other matters specified in any agreement in which funds are held
at the time, and in the manner and for the purposes as otherwise
required or delineated in the Loan Documents and with respect to the
Master Servicer under the Pooling and Servicing Agreement. The
Primary Servicer may direct the investment of such funds subject to
and in accordance with the criteria and requirements set forth in
the Pooling and Servicing Agreement relating to Escrow Accounts,
including without limitation the obligation to deposit into the
Escrow Account the amount of any investment losses to the extent
required in the Pooling and Servicing Agreement. Primary Servicer
shall have the benefit and shall retain all interest and income
earned on the Escrow Accounts for the Mortgage Loans and A/B
Mortgage Loans that is not paid to Mortgagors.
(7) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments
received on Mortgage Loans and A/B Mortgage Loans; (2) a delinquency
report; (3) a real estate tax delinquency report which may be based
upon information provided by Primary Servicer's real estate tax
service (if any) if engaged in accordance with Article VII of this
Agreement; (4) an insurance monitoring report; (5) a UCC form
monitoring report; and (6) the Day One Report. Primary Servicer
shall submit the Payment and Mortgage Loan Status Report described
by clause (1) above by electronic mail on each day that payments or
funds are remitted to the Master Servicer pursuant to Section 2.1(c)
of this Agreement. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report described by clause (2) above by
electronic mail, monthly no later than the tenth (10th) day of each
month for the previous month. Primary Servicer shall submit the
Payment and Mortgage Loan Status Reports described by clauses (3),
(4) and (5) above by electronic mail, quarterly no later than
January 15, April 15, July 15 and October 15 for the previous above
quarter. Primary Servicer shall submit the Payment and Mortgage Loan
Status Report described by clause (6) above by electronic mail,
monthly no later than the first (1st) day of each month in which the
applicable Distribution Date occurs for the then current Collection
Period. If the day on which any Payment and Mortgage Loan Status
Report is otherwise due as described above does not constitute a
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Business Day, then such report shall be due on the immediately
succeeding Business Day.
(8) Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package
for the Mortgage Loans and the A/B Mortgage Loans as follows:
(a) Master Servicer shall complete all fields and
aspects of the CMSA Loan Setup File that are available from
the Final Prospectus Supplement. Upon completing all of such
fields, Master Servicer shall forward the CMSA Loan Setup File
for the Mortgage Loans and the A/B Mortgage Loans to Primary
Servicer who shall complete the fields and aspects of the CMSA
Loan Setup File for the Mortgage Loans and the A/B Mortgage
Loans that are not available from the Final Prospectus
Supplement and return to Master Servicer the completed CMSA
Loan Setup File for the Mortgage Loans and the A/B Mortgage
Loans within five (5) Business Days of receiving such file
from Master Servicer. Master Servicer shall deliver a CMSA
Loan Setup File to Primary Servicer (a) for the Mortgage Loans
and the A/B Mortgage Loans only; (b) in electronic form; (c)
using an Excel file; and (d) with all fields in the same order
as the CMSA Loan Setup File. Primary Servicer and Master
Servicer acknowledge that delivery of the CMSA Loan Setup File
is to commence with the Report Date in February 2006.
(b) Commencing in the applicable "Month of Initial
Report" set forth opposite each report described below, the
Primary Servicer shall complete such report at the frequency
set forth opposite such report below and deliver such report
to the Master Servicer at or before the time described
opposite such report below (and with respect to an A/B
Mortgage Loan, deliver any additional reports to the holder of
the related B Note which may be required to be delivered to
the holder of such B Note, at such times as may be required
pursuant to the applicable A/B Intercreditor Agreement):
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Description of Month of Frequency Time of Required
Report Initial of Delivery to the
Report Report Master Servicer
---------------------------------------------------------------------------------------------------------------
CMSA Property File March 2006 Monthly 10th Business Day for prior month but in no event
later than the Business Day prior to the Report
Date in such month.
Operating Statement June 2006 for year- Annually With respect to each calendar year, beginning in
Analysis Report, CMSA end 2005 2006 for year-end 2005, the earlier of (i) 30 days
Financial File and NOI after receipt of the underlying operating
Adjustment Worksheet statements from the borrower or (ii) June 1.
CMSA Loan Level March 2006 Monthly 10th Business Day for prior month but in no event
Reserve/LOC Report later than the Business Day prior to the Report
Date in such month.
CMSA Servicer Watch March 2006 Monthly 10th Business Day for prior month but in no event
List later than the Business Day prior to the Report
Date in such month.
CMSA Comparative March 2006 Monthly 10th Business Day for prior month but in no event
Financial Status later than the Business Day prior to the Report
Report Date in such month
Quarterly Operating July 2006 Quarterly, With respect to a calendar quarter, within 95 days
Statement Analysis but with following the end of such calendar quarter
Report and CMSA respect to (commencing with the quarter ending on March 31,
Quarterly Financial only the 2006).
File first three
calendar
quarters in
each year
(c) The Master Servicer shall have the responsibility to
complete and deliver the following reports in accordance with
the Pooling and Servicing Agreement: CMSA Loan Setup File,
CMSA Loan Periodic Update File; CMSA Delinquent Loan Status
Report; CMSA REO Status Report; CMSA Historical Loan
Modification Report and CMSA Historical Liquidation Report.
(d) Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Master Servicer
specific information or data in Primary Servicer's possession
and necessary to complete a report for which Master Servicer
is responsible, upon the written request of
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Master Servicer; and (b) the Master Servicer shall reasonably
cooperate to provide to the Primary Servicer specific
information or data in the Master Servicer's possession, as
may be requested in writing by the Primary Servicer, to enable
the Primary Servicer to prepare and deliver to each holder of
a B Note any reports or notices required to be delivered to
each such holder of a B Note, pursuant to the provisions of
the applicable A/B Intercreditor Agreement.
(e) Notwithstanding the definitions of various CMSA
reports in this Agreement that directly link such reports to a
form attached as part of Exhibit W and Exhibit X to the
Pooling and Servicing Agreement, Master Servicer shall be
entitled to amend the forms of such reports that Primary
Servicer must deliver under this Agreement, provided that (a)
the Commercial Mortgage Securities Association has amended the
applicable reports and published such amendments as its
revised form on its website; (b) Master Servicer gives Primary
Servicer no less than one hundred twenty (120) days notice of
any required amendments or revisions to a report prior to
their becoming effective as the form of report to deliver
under this Agreement; and (c) any such amendments or revisions
(either singly or in the aggregate) shall not impose undue
additional burden or costs upon Primary Servicer to collect,
format, calculate or report information to Master Servicer.
(f) All Operating Statement Analysis Reports, NOI
Adjustment Worksheets, financial statements, rent rolls, and
budgets delivered by the Primary Servicer to the Master
Servicer pursuant hereto shall be labeled according to the LNR
Partners, Inc. Naming Convention for Electronic File Delivery.
(9) Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection
Description and Payment and Mortgage Loan Status Reports. In the
event of any conflict between (1) the Task Description and (2) the
Payment and Collection Description and Payment and Mortgage Loan
Status Reports, then the Payment and Collection Description and
Payment and Mortgage Loan Status Reports shall govern.
(10) The Primary Servicer shall be responsible for the
calculation of any and all Prepayment Premiums payable under each
Mortgage Loan and each A/B Mortgage Loan.
(11) Within thirty (30) days following the Closing Date,
Primary Servicer shall deliver to Master Servicer a report listing
the tax parcels coinciding with the Mortgaged Properties.
(12) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan, which are
payable to the holder of the applicable B Note pursuant to the
provisions of the applicable Intercreditor
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Agreement, shall be paid by the Primary Servicer to such B Note
holder no later than three Business Days after collection of such
funds. In the event that the Primary Servicer determines (in its
sole discretion) that in order to confirm the amount to be disbursed
to a B Note holder pursuant to the provisions of the A/B
Intercreditor Agreement, the Primary Servicer requires information
from the Master Servicer, the Primary Servicer shall have the right,
within three Business Days after collection of the funds at issue,
to deliver to the Master Servicer a written request for such
information. The Master Servicer shall provide the information
requested, to the extent that such information is in the possession
of the Master Servicer or involves a calculation to be made by the
Master Servicer on the basis of information in the possession of the
Master Servicer, no later than three Business Days after the Master
Servicer receives the Primary Servicer's written request, and the
Primary Servicer shall make the disbursement at issue to the B Note
holder no later than three Business Days after it receives the
information from the Master Servicer needed to confirm the
disbursement at issue. In the event that the Master Servicer
determines (in its sole discretion) that it is necessary or
desirable to direct the Primary Servicer as to how to allocate
amounts collected for an A/B Mortgage Loan between the holders of
the related Mortgage Loan and its related B Note, the Master
Servicer shall have the right, no later than the end of the second
Business Day after each of the A/B Mortgage Loan's scheduled monthly
payment dates, to deliver a written direction notice to the Primary
Servicer. The Primary Servicer shall comply with the Master
Servicer's directions, absent a disagreement (which shall be
promptly communicated in writing to the Master Servicer) and
addressed by the Master Servicer and the Primary Servicer within the
time frames set forth in this Section 2.1(c)(xii). If there is any
disagreement between the Master Servicer and the Primary Servicer
with respect to the allocation of funds on the A/B Mortgage Loan,
then the Master Servicer and the Primary Servicer shall consult with
each other in good faith but the determination of the Master
Servicer shall control and no consultation shall extend in duration
beyond the date reasonably necessary for allocations, remittances
and reporting to be timely made to the holders of the A Note and B
Note. In the event that collection responsibilities for an A/B
Mortgage Loan are transferred from the Primary Servicer to the
Master Servicer or Special Servicer pursuant to the applicable
provisions of this Agreement or the Pooling and Servicing Agreement,
all amounts that are collected by the Master Servicer or the Special
Servicer, as applicable, during a Collection Period with respect to
such A/B Mortgage Loan and are payable to the holder of the
applicable B Note pursuant to the provisions of the related A/B
Intercreditor Agreement shall be remitted by the Master Servicer to
such B Note holder no later than three Business Days after the
collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B
Note holder (except that if the related Mortgaged Property has
become an REO Property, then the funds on deposit in the related REO
Account related to such REO Property shall be remitted to the Master
Servicer by the Special Servicer as and to the extent otherwise
provided in Section 9.14(b) of the Pooling and
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Servicing Agreement and then, to the extent remittable to the holder
of the applicable B Note, shall be so remitted on the next
succeeding Master Servicer Remittance Date).
d. Commencing in the year 2006, Primary Servicer shall
inspect, or cause to be inspected, each of the Mortgaged Properties for
the Mortgage Loans and the A/B Mortgage Loans in accordance with Section
8.17 of the Pooling and Servicing Agreement and, promptly upon completion
of such inspection, shall deliver to Master Servicer and with respect to
an A/B Mortgage Loan, to the holder of the related B Note, if required by
the applicable A/B Intercreditor Agreement, a property inspection report
in the form attached as Exhibit B-3 ("Property Inspection Description").
Each property inspection report delivered by the Primary Servicer shall be
imaged with the ________________________________________.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In
the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
e. Primary Servicer shall promptly notify the Master Servicer
of any significant events affecting any one or more of the Mortgage Loans
and A/B Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties which become known to Primary Servicer or of which the Primary
Servicer receives notice, such as a payment default, a bankruptcy, a
judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Master Servicer of all material collection
and customer service issues and, promptly following any request therefor
by the Master Servicer, shall furnish to the Master Servicer with copies
of any correspondence or other documents in the possession of the Primary
Servicer related to any such matter. The Primary Servicer shall use
reasonable efforts to promptly notify the Master Servicer as soon as the
Primary Servicer (exercising good faith and reasonable judgment in
accordance with the Servicing Standard) becomes aware that any Servicing
Advance will be required (or may reasonably be expected to be required) to
be made with respect to any Mortgage Loan or any A/B Mortgage Loan under
the standards imposed on the Master Servicer by the Pooling and Servicing
Agreement.
f. Within 30 days following the Closing Date, Primary Servicer
shall deliver to Master Servicer for each of its Mortgage Loans and A/B
Mortgage Loans to be included in the Escrow Status Report, the deadline or
expiration date contained in the applicable escrow or reserve agreement
for completing the specific immediate engineering work, completion of
additional construction, environmental remediation or similar one-time
projects for which such Mortgage Loan or A/B Mortgage Loan is to appear in
the Escrow Status Report.
g. In addition, the Primary Servicer shall deliver or cause to
be delivered to Master Servicer any and all information as may reasonably
be necessary for the Master Servicer to perform its obligations under
Section 8.3(i) of the Pooling and Servicing Agreement (to the extent
related to the Mortgage Loans and/or A/B Mortgage
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Loans); provided, however, that in the event that the Primary Servicer has
sent a notice to a ground lessor as contemplated by such Section 8.3(i) of
the Pooling and Servicing Agreement, the delivery to the Master Servicer
of a copy of such notice shall satisfy the Primary Servicer's obligation
under this section with respect to such ground lease.
h. Primary Servicer shall perform all other obligations of the
Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection with
the performance of its obligations hereunder, the Primary Servicer shall be
entitled to request from the Master Servicer, and the Master Servicer agrees
that it shall provide, express instructions for the completion of any of the
Services to be performed or completed by the Primary Servicer, to the extent
necessary to clarify any ambiguities in the terms of this Agreement. The Master
Servicer further agrees that the Primary Servicer shall be entitled to rely upon
any such written instructions. The Primary Servicer and the Master Servicer,
respectively, shall perform all of their respective obligations as allocated and
set forth in this Agreement, and it is understood that the Primary Servicer
shall have no obligations with respect to the primary servicing of the Mortgage
Loans and the A/B Mortgage Loans, except as specifically set forth in this
Agreement.
B. Standard of Care The Primary Servicer shall perform all Services
on behalf of the Master Servicer in accordance with the terms of this Agreement
and the Servicing Standard and in a manner consistent with the applicable
provisions of the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the applicable provisions of the related A/B Intercreditor
Agreement.
C. Compensation and Other Payments to the Primary Servicer As
consideration for the Primary Servicer's performance of the Services hereunder:
(a), the Primary Servicer shall be entitled to deduct the Aggregate Servicing
Fee in accordance with Section 2.1(c)(iii) of this Agreement, with respect to
the related Collection Period for each Mortgage Loan for which a payment was
received by the Master Servicer or forwarded to the Master Servicer by the
Primary Servicer; and (b) with respect to each A/B Mortgage Loan, the Primary
Servicer shall be entitled to deduct any Primary Servicing Fee or other fee
payable to the Primary Servicer as may be agreed to by the holder of the related
B Note, from each payment received by the Primary Servicer and which is
allocable to such holder of the related B Note, all in accordance with the
provisions of Section 2.1 of this Agreement. Notwithstanding the foregoing,
Primary Servicer shall not be entitled to a Primary Servicing Fee with respect
to any Mortgage Loan (other than an A/B Mortgage Loan) for which a Servicing
Transfer Event has occurred (unless such Mortgage Loan becomes a Rehabilitated
Mortgage Loan) or with respect to which the Primary Servicer has been terminated
as Primary Servicer under this Agreement and the Pooling and Servicing
Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing Fee
for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans become
Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other
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than transfer or assignment of the rights to the Excess Servicing Fee), then
Master Servicer (and any successor) shall cause the Excess Servicing Fee to be
paid on the Mortgage Loans to Primary Servicer monthly in accordance with the
terms of the Pooling and Servicing Agreement.
The Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans and the A/B Mortgage Loans. If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If a Mortgage Loan or an A/B Mortgage
Loan becomes a Specially Serviced Mortgage Loan, Primary Servicer shall be
entitled to collect all such interest and income that accrues through the date
of the applicable Servicing Transfer Event. The right to retain such interest
and income shall resume if such Mortgage Loan or an A/B Mortgage Loan becomes a
Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or portions
of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents and the Mortgagor makes such reimbursement.
D. Primary Servicer Representations and Warranties (a) The Primary
Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (i)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer and (ii) in lieu of the representation described in the first
clause of Section 8.20(a)(i) of the Pooling and Servicing Agreement, the Primary
Servicer represents that the Primary Servicer is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
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(b) The Primary Servicer hereby makes for the benefit of the Master
Servicer the same representations and warranties as are made by the Primary
Servicer to the Depositor under Section 13.2(a) of the Pooling and Servicing
Agreement.
III.
DOCUMENTS AND OTHER MATTERS
A. Segregation of Mortgage Loan Documents The Primary Servicer shall
segregate the Primary Servicer Servicing Documents related to the Mortgage Loans
and the A/B Mortgage Loans from all other assets of the Primary Servicer and,
upon request, forward to the Master Servicer copies of such documents or
originals of such documents if in the possession of Primary Servicer and not
part of the Mortgage File forwarded to the Trustee. The Primary Servicer
acknowledges that any letter of credit held by it shall be held in its capacity
as agent of the Trust, and if the Primary Servicer sells its rights to service
the applicable Mortgage Loan or A/B Mortgage Loan, the Primary Servicer shall
assign the applicable letter of credit to the Trust or at the direction of the
Special Servicer to such party as the Special Servicer may instruct, and the
Primary Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment.
B. Access to Documents; Provision of Certain Information The Primary
Servicer shall make available to the Master Servicer or any Successor Primary
Servicer, at a reasonable time, such information as the Master Servicer or such
Successor Primary Servicer shall reasonably request in writing and shall make
available to the Master Servicer or any Successor Primary Servicer or Persons
designated by the Master Servicer or such Successor Primary Servicer such
documents as the Master Servicer shall reasonably request in writing. The Master
Servicer shall make available to the Primary Servicer, at a reasonable time,
such information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15 of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loan and the A/B Mortgage Loans and the
Servicing of the Mortgage Loans and the A/B Mortgage Loans as the Primary
Servicer shall reasonably request in writing.
IV.
MASTER SERVICER ASSISTANCE
A. Master Servicer Assistance
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(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary and any other
notwithstanding provisions in this Agreement (including any contrary provision
of Exhibit B-2), the Primary Servicer shall do any and all things reasonably
requested by the Master Servicer to enable the Master Servicer to comply with
its obligations under the Pooling and Servicing Agreement. Before the Master
Servicer releases all or any portion of any Mortgage File or document contained
therein or acquired in respect thereof to the Primary Servicer, the Master
Servicer may require the Primary Servicer to execute a receipt therefor or, in
the event of a Mortgage Loan or an A/B Mortgage Loan that has been repaid in
full, a certificate with respect to the payment in full of the related Mortgage
Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services,
the Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans and
A/B Mortgage Loans and carry out its duties hereunder, in each case in
accordance with the Servicing Standard and the terms of this Agreement. The
Primary Servicer hereby agrees to indemnify the Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use of
any such power of attorney.
B. Specially Serviced Mortgage Loans The Primary Servicer shall
promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Mortgagor that are received by the Primary Servicer
and with respect to such Mortgage Loan or A/B Mortgage Loan such other matters
as would, consistent with the Servicing Standard, require notification to the
owner or the servicer of the Mortgage Loan or A/B Mortgage Loan. The Master
Servicer shall notify the Primary Servicer of any Specially Serviced Mortgage
Loan becoming a Rehabilitated Mortgage Loan promptly following the Master
Servicer's receipt of notice to such effect from the Special Servicer and shall
provide Primary Servicer with all relevant documents received during the time
that the relevant Mortgage Loan or A/B Mortgage Loan was a Specially Serviced
Mortgage Loan following the Master Servicer's receipt of such documents from the
Special Servicer. Upon the request of Primary Servicer, Master Servicer shall
request from the Special Servicer all such relevant documents with respect to a
Rehabilitated Mortgage Loan. Notwithstanding anything contained herein to the
contrary, the Primary Servicer shall not without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Primary Servicer's 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
Primary Servicer is servicing pursuant to its duties herein (in which case the
Primary Servicer shall give three (3) Business Days prior notice to the Trustee
of the initiation of such action).
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V.
ADDITIONAL PRIMARY SERVICER COVENANTS
A. Notice of Litigation With respect to any Mortgage Loan or A/B
Mortgage Loan as to which litigation is instituted, the Primary Servicer, if
aware of such litigation, shall notify the Master Servicer immediately as to the
status of the litigation related to such Mortgage Loan or A/B Mortgage Loan and
shall, when reasonably required or requested by the Master Servicer, provide to
the Master Servicer copies of all pertinent information in the Primary
Servicer's possession related to such litigation, including, without limitation,
copies of related Servicing Documents.
B. No Personal Solicitation The Primary Servicer hereby agrees that
it will not knowingly take any action or cause any action to be taken by any of
its agents or Affiliates, or independent contractors or working on its behalf,
to personally, by telephone or mail, solicit the prepayment of any Mortgage Loan
or A/B Mortgage Loan by any Mortgagor. Primary Servicer agrees not to forward to
any Mortgagor or other obligors under a Mortgage Loan or A/B Mortgage Loan, any
correspondence or documents between Master Servicer and Primary Servicer
regarding a Post Closing Request (except the Requirements List (as defined in
Exhibit B-2(c)) without the consent of the Master Servicer or Special Servicer
(acting in its sole discretion), unless required by law.
C. Fidelity Bond and Errors and Omissions Insurance Policy 1. (a)
The Primary Servicer, at its own expense, shall maintain in effect a fidelity
bond (the "Primary Servicer Fidelity Bond") and an errors and omissions policy
(the "Primary Servicer Errors and Omissions Insurance Policy") with a Qualified
Insurer, naming the Master Servicer as loss payee, affording coverage for all
directors, officers and employees. The Primary Servicer Errors and Omissions
Insurance Policy and Primary Servicer Fidelity Bond shall be in such form and
amount that would satisfy the same requirements for such policies as the Master
Servicer must satisfy as set forth in Section 8.2 of the Pooling and Servicing
Agreement. Notwithstanding any other provisions of this Agreement, the Primary
Servicer shall be permitted to self-insure with respect to its obligations to
maintain the Primary Servicer Fidelity Bond and a Primary Servicer Errors and
Omissions Policy to the extent the Master Servicer is permitted under Section
8.2 of the Pooling and Servicing Agreement (construed as if the references
therein to the Master Servicer were instead references to the Primary Servicer).
The Primary Servicer shall furnish to the Master Servicer, not later than thirty
(30) days after the Closing Date, evidence of the Primary Servicer's compliance
with this Section 5.3(a).
2. The Primary Servicer shall promptly report in writing to the
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions Insurance
Policy and shall furnish to the Master Servicer upon written request copies of
all binders and policies or certificates evidencing that such bond and insurance
policy are in full force and effect. The Primary Servicer shall promptly report
in writing to the Master Servicer all cases of embezzlement or fraud or
irregularities of operation relating to the servicing of the Mortgage Loans and
of the A/B Mortgage Loan by the Primary Servicer and its employees, officers,
directors, agents and representatives if such events involve funds relating to
the Mortgage Loans and the A/B Mortgage Loan. The total of such losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in
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such reports together with the amount of such losses covered by insurance. If a
bond or insurance claim report is filed with any of the Primary Servicer's
bonding companies or insurers relating to the Mortgage Loans or the A/B Mortgage
Loans or the servicing thereof, a copy of such report (which report may omit any
references to individuals suspected of such embezzlement, fraud or
irregularities of operation) shall be promptly furnished to the Master Servicer.
D. Primary Servicer's Financial Statements and Related Information
The Primary Servicer shall deliver to the Master Servicer, within 120 days after
the end of its fiscal year, a copy of its annual financial statements, such
financial statements to be audited if then customarily audited, and with respect
to any unaudited financial statements provided by the Primary Servicer, which
financial statements shall be certified by the Primary Servicer's chief
financial officer to be true, correct and complete. The Primary Servicer shall
notify the Master Servicer, as of the Closing Date, of the Primary Servicer's
fiscal year and shall notify the Master Servicer promptly after any change
thereof.
E. No Advancing Under no circumstance shall the Primary Servicer
make or have an obligation to make any Advances.
F. REMIC Compliance The Primary Servicer shall comply with all of
the obligations otherwise imposed on the Master Servicer under Article XII of
the Pooling and Servicing Agreement insofar as such obligations relate to the
Mortgage Loans and/or the A/B Mortgage Loans.
G. Inspection Rights The Primary Servicer shall afford the Master
Servicer and the Trustee, upon reasonable notice and during normal business
hours, reasonable access to all records, information, books and documentation
regarding the applicable Mortgage Loans and the A/B Mortgage Loans, and all
accounts, insurance policies and other relevant matters relating to this
Agreement, and access to Primary Servicing Officers of the Primary Servicer
responsible for its obligations hereunder. Without limiting the preceding
sentence, Master Servicer may visit the offices of Primary Servicer no more than
once annually for the purpose of reviewing Primary Servicer's compliance with
this Agreement upon reasonable notice and during normal business hours, and
Primary Servicer shall reasonably cooperate with Master Servicer to provide
Master Servicer with the information that Master Servicer reasonably requests to
permit such review. Primary Servicer shall reimburse Master Servicer for its
reasonable and actual travel expenses incurred in connection with such review in
an amount not to exceed $5,000 annually in total for this Agreement and all
similar commercial mortgage loan servicing agreements in place between Primary
Servicer and Master Servicer. Primary Servicer shall have no obligation to
provide access to non-public information not pertaining to the Mortgage Loans or
the A/B Mortgage Loans or to proprietary information relating to Primary
Servicer.
H. Authorized Officer Primary Servicer shall provide Master Servicer
promptly with a written list of authorized Servicing Officers of Primary
Servicer, which may be amended from time to time by written notice from Primary
Servicer to Master Servicer; provided, however, that such list shall denote one
principal Servicing Officer responsible for the Primary Servicer's obligations
under this Agreement.
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I. Additional Reports Primary Servicer shall produce such additional
written reports with respect to the Mortgage Loans and the A/B Mortgage Loans as
the Master Servicer may from time to time reasonably request in accordance with
the Servicing Standard and shall reasonably cooperate with Master Servicer to
aid Master Servicer in its obligations to produce additional reports and respond
to inquiries under the Pooling and Servicing Agreement.
J. Prepayment Interest Shortfalls and Excesses 1. (a) For any
Mortgage Loan, Primary Servicer shall require Principal Prepayments to be made
so as not to cause a Prepayment Interest Shortfall. If the Loan Documents of a
related Mortgage Loan do not allow Primary Servicer to require Principal
Prepayments (or condition acceptance of Principal Prepayments) on a date that
will avoid a Prepayment Interest Shortfall ("Non-Mandatory Prepayment Date
Mortgage Loan"), then the Primary Servicer shall pay to Master Servicer on the
date specified in Section 2.1(c)(iv) of this Agreement, in addition to all other
amounts due for such Principal Prepayment, an amount payable by the Primary
Servicer from its own funds without reimbursement therefor equal to any
Prepayment Interest Shortfall that results from such Principal Prepayment (for
the avoidance of doubt, no such reimbursement shall be required with respect to
any B Notes); provided, however, that for all Principal Prepayments received
during any Collection Period with respect to Non-Mandatory Prepayment Date
Mortgage Loans, the Primary Servicer shall in no event be required to remit an
amount greater than the amount of the Primary Servicing Fees for such Collection
Period, plus any investment income earned on the amount prepaid prior to the
related Distribution Date.
2. [Reserved].
3. If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as required under Section 2.1 and Master
Servicer shall, on the Master Servicer Remittance Date immediately following the
remittance of the Principal Prepayment by the Primary Servicer to the Master
Servicer, remit to Primary Servicer a pro rata portion (based upon all
Prepayment Interest Excesses remitted to Master Servicer by all Primary
Servicers (as defined in the Pooling and Servicing Agreement) with respect to
such Collection Period) of the amount by which the amount of the Prepayment
Interest Excesses for such Collection Period exceed all Prepayment Interest
Shortfalls (excluding, with respect to all of the Primary Servicers, any
Prepayment Interest Shortfalls of the type described in clause (b) above) for
such Collection Period with respect to any of the mortgage loans (whether or not
the subject of this Agreement) that are serviced under the Pooling and Servicing
Agreement (except that if the aggregate pro rata portion owed to Primary
Servicer during any Collection Period as a result of such calculation exceeds
$20,000, Master Servicer shall remit to Primary Servicer such pro rata portion
no later than three (3) Business Days prior to the Distribution Date for the
applicable Collection Period).
K. Consents Primary Servicer shall (a) obtain the consent of the
Special Servicer with respect to assignments and assumptions of Mortgage Loans
or A/B Mortgage Loans in accordance and subject to the terms of Section
A.1(c)(ii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the Pooling
and Servicing Agreement; (b) obtain the consent of the Master Servicer with
respect to the defeasance of Mortgage Loans in accordance with and subject to
the terms of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain
the
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consent of the Special Servicer with respect to additional liens, monetary
encumbrances and mezzanine financings in accordance with and subject to the
terms of Section A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Section 8.7
of the Pooling and Servicing Agreement; (d) notify Master Servicer of any
Materiality Determination, which shall thereafter be handled in accordance with
Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; and (e) with
respect to an A/B Mortgage Loan, if required by the related A/B Intercreditor
Agreement, obtain the consent of the holder of the related B Note for those
actions which require the consent of such B Note holder.
L. Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer shall execute and deliver to Master Servicer a
certification substantially in the form set forth in Exhibit D hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in April 2006 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
M. Exchange Act Reports; Annual Compliance Documents
(a) Regulation AB Compliance. The Primary Servicer shall comply with
the reporting and certification requirements required to be complied with by a
"Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant" or an
"Additional Servicer" under Article XIII of the Pooling and Servicing Agreement
(whether or not the Primary Servicer's activities satisfy the percentage
requirement set forth in the definition of "Servicing Function Participant"
under the Pooling and Servicing Agreement (or, implicitly, in the definitions of
"Reporting Servicer" or "Sub-Servicer" under the Pooling and Servicing
Agreement) or the definitional requirements of "Additional Servicer" under the
Pooling and Servicing Agreement).
(b) General Reporting Obligations. The Primary Servicer shall comply
from time to time with the reporting and certification requirements set forth in
Section 5.13(c) with respect to each ABS Issuing Entity. For such purpose,
Section 5.13(c) shall be construed separately in relation to each ABS Issuing
Entity. If any mortgage loan serviced hereunder is not initially held by the
TOP24 Trust, then any ABS Issuing Entity to which such mortgage loan may
subsequently be transferred shall be recognized as an ABS Issuing Entity for
purposes of this Section from and after the effective date set forth in a notice
of such transfer delivered to the Primary Servicer, which notice sets forth the
name of the ABS Issuing Entity, the name and address of the depositor for such
ABS Issuing Entity, the name and address of the trustee for such ABS Issuing
Entity, the name and address of any paying agent and/or certificate
administrator for such ABS Issuing Entity that is not the same person as the
trustee for such ABS Issuing Entity and the name and address of the applicable
master servicer for such ABS Issuing Entity. In no event shall such an effective
date occur earlier than the date that is five (5) Business Days following the
delivery of such notice.
For example and not as a limitation of the preceding paragraph, if a
hypothetical promissory note designated "Note A-1" and a hypothetical promissory
note designated "Note A-2" are secured by the same mortgaged property, such
"Note A-1" is held by the TOP24 Trust and such "Note A-2" is held by a different
commercial mortgage trust, then (i) one set of the reports
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required hereunder must be prepared and delivered with respect to the trust that
holds such "Note A-1" and a second set of the reports required hereunder must be
prepared and delivered with respect to the trust that holds such "Note A-2",
(ii) for purposes of measuring percentages of pool assets, the first set of
reports must reflect (where applicable) a measurement of percentages of pool
assets by reference to the pool of assets held by the trust that holds such
"Note A-1" and the second set of reports must reflect (where applicable) a
measurement of percentages of pool assets by reference to the pool of assets
held by the trust that holds such "Note A-2" and (iii) references in the
succeeding provisions of this Section to the "ABS Issuing Entity" shall mean,
for purposes of the first set of reports, the trust that holds such "Note A-1"
and, for purposes of the second set of reports, the trust that holds such "Note
A-2".
(c) Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than the date set forth in Section 13.9 of the
Pooling and Servicing Agreement with respect to any event described below
of which the Primary Servicer becomes aware, the Primary Servicer shall
deliver to the Depositor or other Applicable Depositor (with a copy to the
Master Servicer) a report (a "Primary Servicer Form 8-K Information
Report") setting forth all of the information regarding such event that is
required to be included in a Current Report on Form 8-K ("Form 8-K") under
the Exchange Act, to the extent that such information relates (i) to the
Primary Servicer or (ii) to the mortgage loans serviced by (and a
servicing function of) the Primary Servicer hereunder. Such events shall
consist of:
(A) a termination or expiration of a material
subservicing agreement;
(B) any instances of a bankruptcy or insolvency
proceeding described in Item 1.03(a) or Item 1.03(b) of Form 8-K
involving the Primary Servicer or any Significant Obligor;
(C) the resignation, removal, replacement or
substitution of a sub-Primary Servicer that constitutes a servicer
described by Item 1108(a)(2) of Regulation AB, or the appointment of
a new such sub-Primary Servicer (in which case the report shall
state the date the event occurred and the circumstances surrounding
the change, provide the disclosure required by Item 1108(d) of
Regulation AB regarding the servicer change and, if a new such
sub-Primary Servicer that constitutes a servicer described in Item
1108(a)(3) of Regulation AB has been appointed, provide the
information required by Item 1108(b) through (d) of Regulation AB
regarding such sub-Primary Servicer, and, to the extent that any
information called for by this clause regarding such sub-Primary
Servicer is not determined or is unavailable at the time of the
required filing, the Primary Servicer shall include a statement to
this effect in the report and then must deliver an amendment to the
report containing such information within one Business Day
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after the information is determined or becomes available to the
Primary Servicer); and
(D) financial statements and exhibits, if any, required
by Item 9.01 of Form 8-K.
(ii) Form 10-D Information. With respect to each ABS Issuing
Entity and each Distribution Date (for so long as such ABS Issuing Entity
is subject to Exchange Act reporting requirements), not later than the
date (in each month) set forth in Section 13.6 of the Pooling and
Servicing Agreement, the Primary Servicer shall deliver to the Depositor
or other Applicable Depositor (with a copy to the Master Servicer) a
report (a "Primary Servicer Form 10-D Information Report") setting forth
all of the information that is required to be included in the Asset-Backed
Issuer Distribution Report on Form 10-D ("Form 10-D") under the Exchange
Act relating to the Distribution Date occurring in such month, to the
extent that such information relates (i) to the Primary Servicer or (ii)
to the mortgage loans serviced by (and a servicing function of) the
Primary Servicer hereunder; provided, however, that the Primary Servicer
shall be required to deliver a Primary Servicer Form 10-D Information
Report each month only to the extent that an event requiring disclosure
under Form 10-D has occurred in such month, non-delivery of such report in
any given month being deemed to constitute a representation by the Primary
Servicer that no such event has occurred in such month. Such information
shall include, without limitation:
(A) a description of any material legal proceedings
involving the Primary Servicer or changes in the status thereof, all
as contemplated by Item 2 of Form 10-D and Item 1117 of Regulation
AB referred to therein;
(B) if any mortgage loan serviced hereunder and held by
the ABS Issuing Entity involves a Significant Obligor, the financial
information regarding such obligor that is required by Item 6 of
Form 10-D and Item 1112(b) of Regulation AB referred to therein, to
the extent such information is available to the Primary Servicer (it
being hereby acknowledged by the Primary Servicer that it shall
request, and shall use reasonable efforts in accordance with the
Servicing Standard to obtain, such information from the obligor);
(C) any change in the information described in Item
1100(b)(5) of Regulation AB;
(D) the information described in Items 1121(a)(5) and
1121(a) (6) of Regulation AB (to the extent such information is not
in the CMSA reports described in Article I hereof); and
(E) exhibits, if any, required by Item 9 of Form 10-D.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long as it
is subject to
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Exchange Act reporting requirements), not later than the date in each
month set forth in Section 13.7 of the Pooling and Servicing Agreement,
the Primary Servicer shall deliver to the Depositor or other Applicable
Depositor (with a copy to the Master Servicer) a report (a "Primary
Servicer Form 10-K Information Report") setting forth all of the
information (other than a report regarding its assessment of compliance, a
report by a registered public accounting firm that attests to and reports
on such assessment report and a statement of compliance, which reports and
statements shall be governed by subsection (c)(iv)) that is required to be
included in an Annual Report on Form 10-K (a "Form 10-K") under the
Exchange Act relating to the most recently ended calendar year, to the
extent that such information relates (i) to the Primary Servicer or (ii)
to the mortgage loans serviced by (and a servicing function of) the
Primary Servicer hereunder. Such information shall include, without
limitation:
(A) any information regarding legal proceeding involving
the Primary Servicer that is required to be reported by or on behalf
of the ABS Issuing Entity on such Form 10-K pursuant to Instruction
J(2)(d) to Form 10-K and Item 1117 of Regulation AB referred to in
such instruction;
(B) if any mortgage loan serviced hereunder and held by
such ABS Issuing Entity relates to a Significant Obligor of the ABS
Issuing Entity, the financial information regarding such obligor
that is required by Instruction J(2)(b) to Form 10-K and Item
1112(b) of Regulation AB referred to in such instruction; and
(C) the following descriptions of affiliations:
(I) a description of the existence and nature of
any affiliation between the Primary Servicer, on the one hand,
and any other person or entity described in Item 1119(a) of
Regulation AB, on the other, that is required to be described
in such Form 10-K under Item 1119(a) of Regulation AB;
(II) a description of the existence and character
of any relationship, agreement, arrangement, transaction or
understanding between the Primary Servicer or any affiliate of
the Primary Servicer, on the one hand, and any of the other
parties described in Item 1119(a) of Regulation AB, on the
other, that is required to be described in such Form 10-K
under Item 1119(b) of Regulation AB; and
(III) a description of any specific relationships
between the Primary Servicer or any affiliate of the Primary
Servicer, on the one hand, and any of the other parties
described in Item 1119(c) of Regulation AB (as construed in
relation to each of the Trust and each other ABS Issuing
Entity separately), on the other, that is required to be
described in such Form 10-K under Item 1119(c) of Regulation
AB.
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(iv) Annual Compliance Information. Not later than March 1 of
each year, the Primary Servicer shall deliver to the Master Servicer the
following reports and certifications:
(A) a report regarding its assessment of compliance with
the servicing criteria specified in Item 1122(d) of Regulation AB,
as of and for the period ending the end of the prior calendar year,
with respect to asset-backed securities transactions taken as a
whole that are backed by the same asset type as that included in the
ABS Issuing Entity, which report of assessment shall or would
conform to the criteria set forth in Item 1122(a) and Item
1122(c)(1) of Regulation AB;
(B) a report by a registered public accounting firm that
attests to, and reports on, the assessment described in the
preceding clause (A), which report shall be made in a manner that
conform or would conform to the standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board and shall or would conform to the requirements of
Item 1122(b) and Item 1122(c)(1) of Regulation AB; and
(C) a statement of compliance from the Primary Servicer
that shall or would comply with Item 1123 of Regulation AB, and
signed by an authorized officer of the Primary Servicer, to the
effect that: (a) a review of the Primary Servicer's activities
during the then most-recently ended calendar year and of its
performance 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 servicer has fulfilled all of its obligations
under this Agreement in all material respects throughout the then
most-recently ended calendar year or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each
such failure known to such officer and the nature and status
thereof.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. Simultaneously with
its delivery of the Primary Servicer Form 10-K Information Report, the
Primary Servicer shall execute and deliver to or as directed by the Master
Servicer and/or the Applicable Depositor a backup certification, which
shall be substantially in the form attached as Exhibit CC-1 to the Pooling
and Servicing Agreement in support of any certification obligation to
which the Master Servicer, the depositor for the ABS Issuing Entity, the
trustee for the ABS Issuing Entity, the master servicer for the ABS
Issuing Entity (if other than the Master Servicer) or other similar party
is subject under the governing agreement for the ABS Issuing Entity in
connection with the certification requirements of the Xxxxxxxx-Xxxxx Act
of 2002, as amended, and Rule 302 of the Regulations with respect to the
mortgage loans serviced by the Primary Servicer under this Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by the
Primary Servicer shall appear under a cover substantially in the form attached
hereto as Exhibit E. Each
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report, certification and statement that is delivered or rendered by the Primary
Servicer itself shall be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary Servicer under
this Agreement. Each report delivered by the Primary Servicer that contains
Primary Servicer Form 8-K Reporting Information, Primary Servicer Form 10-D
Reporting Information or Primary Servicer Form 10-K Reporting Information shall
appear in the same form that a Form 8-K, Form 10-D or Form 10-K is required to
appear under the Regulations, except that such report shall:
(i) omit the cover page that would be required under the
applicable form under the Regulations (but the report shall nonetheless
appear under a cover substantially in the form attached hereto as Exhibit
E, as contemplated above); and
(ii) omit to comply with the signature requirements that would
apply under the applicable form under the Regulations (but the report
shall nonetheless be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary Servicer
under this Agreement, as contemplated above, and shall contain a statement
to the effect that the report is submitted in connection with the
reporting obligations associated with the ABS Issuing Entity under the
Exchange Act).
In no event shall any statement or legend (whether such
statement or legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Master Servicer or the
Depositor in a report or certification filed with the SEC or otherwise pursuant
to the Regulations. The preceding statement shall not be construed to allow any
limitation on liability that is not otherwise contemplated under this Section.
(f) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans that
are not serviced under this Agreement: (i) the final prospectus supplement
prepared by the Depositor with respect to the offering of the securities issued
by the ABS Issuing Entity and (ii) any reports delivered from time to time by
the Master Servicer, the master servicer for the ABS Issuing Entity (if such
party is not the Master Servicer), the trustee for the ABS Issuing Entity and/or
the paying agent, certificate administrator or other similar party for the ABS
Issuing Entity.
(g) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Primary Servicer, or any assignment of the obligations of the
Primary Servicer, pursuant to the other provisions of this Agreement, the
Primary Servicer shall remain obligated to comply from time to time with the
reporting and certification obligations that would have been applicable under
subsection (c)(iii)(C) (report of affiliations), subsection (c)(iii)(D)
(assessment of compliance and related assessment by a public accounting firm),
subsection (c)(iii)(E) (compliance certification) and/or subsection (c)(iv)
(Xxxxxxxx-Xxxxx backup certification) in the absence of such resignation,
removal, termination or assignment, but only to
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the extent related to the time period prior to the effective date of such
resignation, removal termination or assignment. Without limiting the generality
of the preceding statement, if the Primary Servicer voluntarily assigns its
obligations under this Agreement pursuant to the other provisions of this
Agreement (or with the consent of the Master Servicer), then the successor
Primary Servicer shall be obligated to cause the predecessor Primary Servicer to
perform the surviving reporting and certification obligations set forth above
and the failure to do so will constitute an "event of default" on the part of
the successor Primary Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to the
date of this Agreement. The parties acknowledge that the provisions of this
Section shall not be construed to require the Primary Servicer to sign any Form
8-K, Form 10-D or Form 10-K to be filed with respect to the ABS Issuing Entity
with the SEC (except to the extent, if any, that the Regulations require such
signature).
(i) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an interpretation of
the Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Master Servicer on the other, the
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, shall be conclusive and binding in the absence of manifest
error, and, for the purposes of this Agreement, the Primary Servicer shall be
entitled to rely on any such determination. If the Primary Servicer initiates
legal proceedings asserting an interpretation that differs from any such
determination of the Master Servicer, as set forth in a written notice to the
Primary Servicer, the Primary Servicer shall comply with such determination of
the Master Servicer unless and until a final, nonappealable judgment is rendered
in connection with such proceedings, in which case such final, nonappealable
judgment shall control. If the Primary Servicer receives notice of
interpretations hereunder from the Master Servicer that conflict with each
other, the Primary Servicer shall promptly notify the Master Servicer, in which
case the Primary Servicer shall comply with the interpretation described in the
applicable written notice from the Master Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any contrary
provisions set forth in this Agreement, if the SEC or its staff issues any
order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the Applicable
Depositor and/or its affiliates or specifically to the applicable ABS Issuing
Entity, then, subject to the immediately succeeding sentence, the Primary
Servicer shall comply with such order, no-action letter or staff interpretation
insofar as such order, no-action letter or staff interpretation, or the
interpretations reflected therein, does or would (if implemented) affect the
reporting and certification obligations of the Primary Servicer hereunder. The
compliance obligation otherwise described in the preceding sentence shall not be
required unless there shall have been delivered to the Primary Servicer a notice
of such order, no-action letter or staff interpretation, which notice attaches a
copy of the applicable order, no-action letter or staff interpretation or
relevant excerpts thereof.
(k) [Reserved.]
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(l) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 5.13 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Primary Servicer to delegate its obligations under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the
Exchange Act or the Regulations are amended to impose additional or more
stringent reporting and/or certification obligations with respect to the ABS
Issuing Entity, which additional or more stringent reporting and/or
certification obligations are not otherwise effective pursuant to the other
provisions of this Agreement, the parties hereto shall negotiate in good faith
for an amendment to this Section 5.13 to result in compliance with such law or
regulation as so amended. In the event that the Securities Act, the Exchange Act
or the Regulations are amended to reduce reporting and/or certification
obligations with respect to the ABS Issuing Entity, the parties hereto shall
negotiate in good faith for an amendment to this Section 5.13 to result in
compliance with such law or regulation as so amended.
VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
A. Primary Servicer Default Each of the following events shall
constitute a "Primary Servicer Default" hereunder:
a. any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement;
or
b. except in the case of Section 6.1(c), any failure by the
Primary Servicer duly to observe or perform in any material respect any of
the covenants or agreements on the part of the Primary Servicer contained
in this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such failure and
the Certificateholders and holders of any B Note shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Primary Servicer to cure such failure;
provided, however, that such cure period may not exceed sixty (60) days;
and provided, further, that if such failure to observe or perform on the
part of the Primary Servicer would result in an Event of Default (or an
event that with notice or the passage of time would constitute such an
Event of Default) by the Master Servicer under the Pooling and
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Servicing Agreement or applicable A/B Intercreditor Agreement, then the
cure periods described in this Section 6.1(b) shall not apply; or
c. any breach of the representations and warranties made
pursuant to Section 2.4(b) hereof or any failure by the Primary Servicer
to comply with one or more provisions of Section 5.13 or clause (d) of
Article VII; provided, however, that all of the following provisions shall
apply:
(A) to the extent the Master Servicer determines, in its
reasonable discretion, following consultation with the Applicable
Depositor, that the Primary Servicer is in good faith attempting to
remedy such failure and no Certification Party will be materially
and adversely affected by giving the Primary Servicer an opportunity
to cure such failure, the Master Servicer may, following
consultation with the Applicable Depositor, give the Primary
Servicer such opportunity;
(B) the period of time to cure such failure may not
exceed three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would result in either
failure by the Master Servicer (or the master servicer in an Other
Securitization) to submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor (or another
Applicable Depositor) to submit to the SEC, timely, complete and
accurate reports of the type described in Article XIII of the
Pooling and Servicing Agreement;
(D) unless the Master Servicer otherwise consents, the
cure period described in this Section 6.1(c) shall end on the
earlier of (I) the date on which the Master Servicer has delivered
(or would be required to deliver) a report or certification to the
Applicable Depositor or to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer and (II) the date on which the
Applicable Depositor has delivered (or would be required to deliver)
a report or certification to the SEC, which report is or would be
inaccurate, incomplete or unable to be rendered as a result of such
failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to
comply with any of its obligations under Section 5.13(c)(i),
5.13(c)(ii), 5.13(c)(iii), 5.13(c)(iv)(A), 5.13(c)(iv)(B) or
5.13(c)(iv)(C) hereof on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in,
such Sections, (x) the Primary Servicer subsequently complies with
such obligations before the Master Servicer gives written notice to
the Primary Servicer that it is terminated in accordance with this
Section 6.1(c) and Section 6.2, (y) the Primary Servicer's failure
to comply does not cause termination of the Master Servicer under
Section 8.28(a)(xi) and Section 8.29 of the Pooling and Servicing
Agreement, (z) the Primary Servicer's failure to comply does not
cause the Paying Agent to fail in its obligations to timely file the
related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the
related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing
Deadline, then such failure of the Primary Servicer to so comply
shall cease to be a Primary Servicer Default under this Section
6.1(c) on the date on which such Form 8-K, Form 10-D or Form 10-K is
so filed; or
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d. any breach of the representations and warranties made
pursuant to Section 2.4(a) hereof that materially and adversely affects
the interest of the Master Servicer and that continues unremedied for a
period of twenty-five (25) days after the date on which written notice of
such breach, requiring the same to be remedied, shall have been given by
the Master Servicer to Primary Servicer; provided, however, that to the
extent the Master Servicer determines in its reasonable discretion that
the Primary Servicer is in good faith attempting to remedy such breach and
the Certificateholders and holders of any B Note shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Primary Servicer to cure such breach;
provided, however, that such cure period may not exceed sixty (60) days;
and provided, further, that if such failure to perform on the part of the
Primary Servicer results in an Event of Default (or an event that with
notice or the passage of time would constitute such an Event of Default)
by the Master Servicer under the Pooling and Servicing Agreement or
applicable A/B Intercreditor Agreement, then the cure periods described in
this Section 6.1(c) shall not apply; or
e. any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
f. 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 Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
g. the Primary 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 or of or relating to all or
substantially all of its property; or
h. the Primary 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
i. any other event caused by the Primary Servicer which
creates an Event of Default (or an event that with notice or the passage
time would constitute or result in such an Event of Default) of the Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement; or
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j. if Primary Servicer becomes or serves as Master Servicer at
any time, any failure by the Primary Servicer duly to observe or perform
in any material respect any of the covenants or agreements of Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement, which failure continues unremedied beyond the
expiration of applicable cure periods.
Primary Servicer agrees to give prompt written notice to the Master
Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Primary Servicer Default.
B. Termination 1. The obligations and responsibilities of the
Primary Servicer as created hereby (other than as expressly provided herein)
shall terminate upon the earliest to occur of (i) the receipt by the Primary
Servicer of the Master Servicer's written notice of such termination delivered
at the Master Servicer's option following the occurrence of a Primary Servicer
Default other than as described in Section 6.1(c), (ii) the occurrence of a
Primary Servicer Default described in Section 6.1(c) and (iii) the later of the
final payment or other liquidation of (x) the last Mortgage Loan or (y) the A/B
Mortgage Loan (the "Primary Servicing Termination Date"). From and after the
Primary Servicing Termination Date, the Primary Servicer shall, if applicable,
continue to cooperate in the transfer of primary servicing, including the
delivery of files and transfer of accounts as contemplated hereby but shall have
no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement, the Pooling and
Servicing Agreement and each A/B Intercreditor Agreement may be assumed by a
successor Master Servicer or the Trustee upon a termination of the Master
Servicer's servicing rights pursuant to the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm to
Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
2. The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder shall survive the Primary Servicing Termination Date, but
only to the extent such reimbursement relates to a period prior to the
termination of all of the Primary Servicer's obligations hereunder.
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3. The rights of Master Servicer to terminate Primary Servicer upon
the occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
C. Post-Termination Obligations 1. In the event of a termination of
primary servicing due to a Primary Servicer Default, the Primary Servicer shall
promptly deliver the Primary Servicer Servicing Documents as directed by the
Master Servicer and remit to the Master Servicer, by wire transfer of
immediately available funds, all cash held by the Primary Servicer with respect
to the related Mortgage Loans and A/B Mortgage Loans, and shall, if so requested
by the Master Servicer, assign to the Master Servicer or a Successor Primary
Servicer, as directed by the Master Servicer, and in such event the Master
Servicer shall assume, or cause the Successor Primary Servicer to assume, all
service contracts related to the Mortgage Loans and the A/B Mortgage Loans
transferred thereon but only to the extent such contracts are assignable and the
required consents (if any) to such assignments have been obtained. The Primary
Servicer shall use all reasonable efforts to obtain the consents required to
effect such assignments.
2. On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan and any A/B Mortgage Loan which are received by the Primary Servicer.
3. The Primary Servicer shall provide to the Master Servicer
promptly (but in no event later than ten (10) Business Days) after the Primary
Servicing Termination Date the following information, in each case as of such
date: (a) a ledger accounting itemizing the dates and amounts of all payments
made, received or applied by the Primary Servicer with regard to each Mortgage
Loan and each A/B Mortgage Loan, further itemizing principal and interest
payments, tax payments, special assessments, hazard insurance, mortgage
insurance premiums, ground rents, if any, and all other payments and (b) a
current trial balance for each such Mortgage Loan and A/B Mortgage Loan.
4. On a date to be agreed upon by the Primary Servicer and the
Master Servicer, but not later than the Business Day following the Primary
Servicing Termination Date, the Primary Servicer shall commence and continue
diligently to completion at its own expense, to notify Mortgagors under the
related Mortgage Loans and A/B Mortgage Loans of the address to which payments
on such Mortgage Loans and A/B Mortgage Loans should be sent after the Primary
Servicing Termination Date; provided, however, that in any event, Primary
Servicer shall be obligated to notify Mortgagors within seven (7) Business Days
of the Primary Servicing Termination Date.
5. The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan and any A/B Mortgage Loan which is received by the
Primary Servicer after the Primary Servicing Termination Date.
6. The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and shall
forward to the Master
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Servicer and any Successor Primary Servicer such documents as it may receive
from time to time regarding any Mortgage Loan or A/B Mortgage Loan transferred
and provide such other assistance as may reasonably be required by the Master
Servicer or any Successor Primary Servicer regarding such transfer.
7. The Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans and A/B Mortgage Loans accrued
through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
D. Additional Termination Notwithstanding any provision herein to
the contrary, this Agreement shall terminate with respect to any individual
Mortgage Loan or A/B Mortgage Loan (i) if and when such Mortgage Loan or A/B
Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO Mortgage Loan
or (ii) if and when such Mortgage Loan or A/B Mortgage Loan is sold or otherwise
disposed of by or on behalf of the Trust (which sale or disposition shall not
include the transformation of a Mortgage Loan or A/B Mortgage Loan into a
Defeasance Loan). In the event of such termination, the Primary Servicer shall
comply with Section 6.3 as if a Primary Servicer Default had occurred, except
that such Section shall be construed to relate only to such Mortgage Loan or A/B
Mortgage Loan and references therein to Primary Servicing Termination Date shall
be construed to mean the date of such termination, and (ii) the Primary Servicer
shall cooperate in the orderly transfer of the servicing of such Mortgage Loan
or A/B Mortgage Loan and shall forward to the Master Servicer such documents as
it may receive from time to time with respect thereto and provide such other
assistance as may reasonably be required by the Master Servicer with respect
thereto. Primary Servicer shall be entitled to all fees, compensation, interest
and earnings on such Mortgage Loan or A/B Mortgage Loan accrued through the date
of termination of its obligations and rights with respect to such Mortgage Loan
or A/B Mortgage Loan under this Agreement; provided, however, Primary Servicer
shall continue to collect the Excess Servicing Fee after termination in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement. If such Mortgage Loan or A/B Mortgage Loan subsequently becomes a
Rehabilitated Mortgage Loan, then the Primary Servicer shall promptly resume the
servicing of such Mortgage Loan or A/B Mortgage Loan in accordance with the
terms hereof.
VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in the
case of material subcontracts and without prior notice to or the prior written
consent of the Master Servicer in the case of non-material subcontracts, the
Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans and A/B Mortgage
Loans; provided, however, that (a) the Primary Servicer shall remain fully
liable at all times for the performance of all Services and for all other
obligations hereunder; (b) in no event shall any such subcontractors make any of
the decisions, be given discretion to make any decisions, or have any authority
to make any decisions, required as part of a Category 1 Request or Category 2
Request or any decision or recommendation involving the exercise of the Primary
Servicer's discretion as a "lender" under any of the Loan Documents for the
Mortgage Loans and the A/B
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Mortgage Loans; (c) the Primary Servicer shall maintain and perform policies and
procedures to monitor such subcontractors' performance of the services for which
they are employed; and (d)(i) the Primary Servicer shall not, for so long as any
ABS Issuing Entity is subject to the reporting requirements of the Exchange Act,
engage any "Subcontractor" (as defined in the Pooling and Servicing Agreement)
after the Closing Date without the Master Servicer's and the Depositor's prior
written consent, which, in either case, shall not be unreasonably withheld and
(ii) the Primary Servicer shall, with respect to each such Subcontractor with
which it has entered into a servicing relationship with respect to the Mortgage
Loans after the Closing Date, (A) include in a written agreement between the
Primary Servicer and such Subcontractor provisions analogous to those of Section
5.13 hereof, Section 6.1(c) hereof, Section 2.4(b) hereof, this clause (d) of
this Article VII, the last sentence of Section 10.11 hereof, the last sentence
of Section 10.13 hereof and the last sentence of Section 13.14 of the Pooling
and Servicing Agreement and (B) use reasonable efforts to cause such
Subcontractor to comply with the report delivery, indemnification and
contribution obligations set forth in such analogous provisions.
VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage Loans held
by the Primary Servicer, including but not limited to the Primary Servicer
Servicing Documents, mortgage servicing documents, books, computer tapes and
other documents and records (except for microfilm records) as well as any
reproductions or copies of such records furnished for the purposes of performing
Services from the Cut-off Date are, and shall continue at all times to be, held
by the Primary Servicer for the benefit of the Master Servicer and for the
Trustee and shall not be released, disseminated or otherwise made available to
third parties without the prior written consent of the Master Servicer.
IX.
INDEMNIFICATION
A. Primary Servicer's Indemnity 1. The Primary Servicer shall
indemnify the Master Servicer, its officers, employees and agents against, and
hold the Master Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the Master
Servicer arising out of or related to (i) a negligent or willful failure of the
Primary Servicer or any Person hired by the Primary Servicer to perform properly
any of the Services to be performed by the Primary Servicer pursuant to the
Payment and Collection Description, the Payment and Mortgage Loan Status
Reports, Post Closing Matters Description and Task Description, (ii) any failure
by the Primary Servicer to perform its obligations under this Agreement, or
(iii) breach of any of the Primary Servicer's representations and warranties
hereunder; provided, however, that the Primary Servicer shall not be required to
indemnify the Master Servicer, its officers, employees or agents against or hold
the Master Servicer, its officers, employees or agents harmless from any losses
to the extent that such loss is caused by the actions of the Master Servicer,
its officers, employees or agents in violation of the Master Servicer's duties
under this Agreement, under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement (except to the extent that such failure was caused by
the Primary Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Master Servicer shall
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promptly notify the Primary Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans or the A/B Mortgage Loans
entitling the Master Servicer to indemnification hereunder. The Primary Servicer
shall 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 Primary Servicer shall not affect any of the Master Servicer's
rights to indemnification.
2. Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, any holder of a B Note, the
Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith and using its reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Primary Servicer or any such
person against any breach of a covenant, 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 or by reason
of reckless disregard for its obligations and duties under this Agreement. The
Primary Servicer and any director, officer, employee or agent of the Primary
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
B. Master Servicer's Indemnity The Master Servicer shall indemnify
the Primary Servicer, its officers, employees and agents against, and hold the
Primary Servicer harmless from, any and all losses, liabilities, expenses,
claims, demands, costs, or judgment of any type against the Primary Servicer, to
the extent arising out of, or related to reliance by the Primary Servicer on,
(i) pursuant to Section 5.13(i), an interpretation of the Securities Act, the
Exchange Act or the Regulations set forth in a written notice from the Master
Servicer to the Primary Servicer or (ii) any incorrect asset pool balance
supplied by the Master Servicer with respect to the TOP24 Trust, if such
incorrect balance is the cause of any incorrect determination by the Primary
Servicer that an obligor on a Mortgage Loan is not a Significant Obligor. The
indemnification provided under this Section 9.2 shall survive the Primary
Servicing Termination Date.
X.
MISCELLANEOUS
A. Severability If any term, covenant, condition or provision hereof
is unlawful, invalid, or unenforceable for any reasons whatsoever, and such
illegality, invalidity, or unenforceability does not affect remaining part of
this Agreement, then all such remaining parts hereof shall be valid and
enforceable and have full force and effect as if the invalid or unenforceable
part had not been included.
B. Rights Cumulative; Waivers The rights of each of the parties
under this Agreement are cumulative and may be exercised as often as any party
considers appropriate. The rights of each of the parties hereunder shall not be
capable of being waived or amended other than by an express waiver or amendment
in writing. Any failure to exercise (or any delay in exercising) any of such
rights shall not operate as a waiver or amendment of that or any other
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such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
stop or preclude such party from exercising any such right or constitute a
suspension or any waiver of any such right.
C. Headings The headings of the Sections and Articles contained in
this Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or any provision hereof.
D. Construction Unless the context otherwise requires, singular
nouns and pronouns, when used herein, shall be deemed to include the plural of
such noun or pronoun and pronouns of one gender shall be deemed to include the
equivalent pronoun of the other gender. 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.
E. Assignment (a) This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective permitted successors and assigns. This Agreement
and the rights and benefits hereunder of the Primary Servicer shall not be
assignable, and the duties and obligations hereunder of such party shall not be
delegable, except that in the following instances, Primary Servicer may assign,
sell or transfer its rights under this Agreement without the consent of (but
upon written notice to) the Master Servicer:
(1) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to a
parent company of Primary Servicer or a wholly-owned subsidiary or
Affiliate of such party, or a successor by merger or as the result of a
demutualization of a parent company of Primary Servicer, as long as such
successor has net assets and net worth equal to or greater than the net
assets and net worth of the Primary Servicer.
(2) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to an
entity that then serves as a primary servicer for other mortgage loans
held by the Trust at the time of such assignment, sale or transfer.
(3) With the prior written consent of the Master Servicer and
the Depositor which consent shall not be unreasonably withheld or delayed,
Primary Servicer may assign, sell or transfer its rights and obligations
under this Agreement (in whole and not in part) to any master or primary
servicer, if (1) such entity is either (a) rated by the Rating Agencies as
satisfactory or its equivalent in such capacity or (b) approved by the
Special Servicer and Operating Advisor (in addition to Master Servicer as
provided above), which approval shall not be unreasonably withheld or
delayed, and (2) Primary Servicer at its sole cost receives Rating Agency
Confirmation from the Rating Agencies prior to such assignment, sale or
transfer.
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(4) Primary Servicer may subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to
the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be effective
until such Successor Primary Servicer enters into a written agreement reasonably
satisfactory to the Master Servicer and the Depositor agreeing to be bound by
the terms and provisions of this Agreement (but not altering the obligations
under this Agreement); and (ii) not relieve the assigning Primary Servicer of
any duties or liabilities arising or incurred prior to such assignment. Any
costs or expenses incurred in connection with such assignment shall be payable
by the assigning Primary Servicer. Any assignment or delegation or attempted
assignment or delegation in contravention of this Agreement shall be null and
void. The proceeds of any assignment, sale or transfer permitted under this
Section 10.5 or to which consent was granted shall belong solely to the assignor
of such rights, and Master Servicer shall have no claim to them.
2. Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary 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 Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer shall
have assumed the Primary Servicer's responsibilities and obligations under this
Agreement, and Special Servicer and Operating Advisor shall have consented to
such successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Master Servicer of
Primary Servicer's responsibilities and obligations under this Agreement
pursuant to this Section 10.6(a) shall not require the consent of Special
Servicer or Operating Advisor.
3. The Primary Servicer may resign from the obligations and duties
imposed on it, upon 60 days' notice to the Master Servicer, provided that (i)
the Primary Servicer bears all costs associated with its resignation and the
transfer of servicing; (ii) Primary Servicer designates a successor servicer to
assume Primary Servicer's responsibilities and obligations under this Agreement;
(iii) Master Servicer, Special Servicer and Operating Advisor shall consent to
such successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the designation and assumption by Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this Section
10.6(b) shall not require the consent of Special Servicer or Operating Advisor.
4. In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of resignation
under subsections (a) or (b) above, as the case may be.
F. Prior Understandings This Agreement supersedes any and all prior
discussions and agreements between or among the Seller, the Primary Servicer and
the Master
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Servicer with respect to the Servicing of the Mortgage Loans and the A/B
Mortgage Loans and the other matters contained herein. This Agreement, together
with the Pooling and Servicing Agreement and each A/B Intercreditor Agreement,
contain the sole and entire understanding between the parties hereto with
respect to the transactions contemplated herein. Every effort shall be made to
construe this Agreement, the Pooling and Servicing Agreement and each A/B
Intercreditor Agreement consistently. If a conflict exists between such
agreements, then the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement shall control. If this
Agreement requires Primary Servicer to perform a task or duty, the details and
obligations of which are (a) set forth in this Agreement and (b)(i) are not set
forth in the Pooling and Servicing Agreement or with respect to an A/B Mortgage
Loan, the applicable A/B Intercreditor Agreement, (ii) are set forth in the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
applicable A/B Intercreditor Agreement only in general terms, then Primary
Servicer shall perform such task and duties in accordance with the details and
obligations set forth in this Agreement. If this Agreement requires Primary
Servicer to perform a task or duty, the details and obligations of which are not
set forth in this Agreement but are contained in the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, then the Primary Servicer shall perform such task and
duties in accordance with the Pooling and Servicing Agreement.
G. Integrated Agreement This Agreement constitutes the final
complete expression of the intent and understanding of the Primary Servicer and
the Master Servicer and may not be altered or modified except by a subsequent
writing, signed by the Primary Servicer and the Master Servicer.
H. Counterparts This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
I. Governing Laws This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflicts
of law principles, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
J. Notices Unless otherwise provided for herein, all notices and
other communications required or permitted hereunder shall be in writing
(including a writing delivered by facsimile transmission) and shall be deemed to
have been duly given (a) when delivered, if sent by registered or certified mail
(return receipt requested), if delivered personally or by facsimile or (b) on
the second following Business Day, if sent by overnight mail or overnight
courier, in each case to the parties at the following addresses (or at such
other addresses as shall be specified by like notice);
If to the Master Servicer: As set forth in Section 13.5 of the
Pooling and Servicing Agreement
If to the Primary Servicer: __________________________________
__________________________________
__________________________________
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__________________________________
__________________________________
Telephone No.: _____________________
Facsimile No.: ______________________
K. Amendment In the event that the Pooling and Servicing Agreement
or an A/B Intercreditor Agreement is amended, this Agreement shall be deemed to
have been amended and to the extent necessary to reflect such amendment to the
Pooling and Servicing Agreement or such A/B Intercreditor Agreement, but no such
amendment to the Pooling and Servicing Agreement or A/B Intercreditor Agreement
or deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Primary Servicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed. For so long
as any ABS Issuing Entity is subject to the reporting requirements of the
Exchange Act, the parties hereto may not amend or modify any provision of
Section 5.13, Section 6.1(c), Section 2.4(b), clause (d) of Article VII, the
last sentence of Section 10.13, or this sentence without the Depositor's prior
written consent.
Notwithstanding anything to the contrary contained in this Section 10.11,
the parties hereto agree that this Agreement may be amended pursuant to Section
5.11 herein without any notice to or consent of any of the Certificateholders,
any B Note holder, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
L. Other This Agreement shall not be construed to grant to any party
hereto any claim, right or interest in, to or against the trust fund created
pursuant to the Pooling and Servicing Agreement or any assets of such trust
fund.
M. Benefits of Agreement Nothing in this Agreement, express or
implied, shall be construed to grant to any Mortgagor or other Person, other
than the parties to this Agreement and the parties to the Pooling and Servicing
Agreement, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement, except that the Depositor, any other Applicable Depositor
and any master servicer for an ABS Issuing Entity other than the TOP24 Trust are
intended third-party beneficiaries of Section 5.13.
[END OF PAGE]
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of
the parties hereto by an authorized representative, all as of the day and year
first above written.
_______________________________________,
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement
By:_______________________________________
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULES
Loan
Number Loan Name Cut-Off Date Balance
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SCHEDULE II
[reserved]
EXHIBIT A
Pooling and Servicing Agreement
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
Payment and Mortgage Loan Status Reports
Exhibit B-1(a): Remittance report for payments received on Mortgage
Loans during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-2
Overview of Methodology of Allocation of Responsibility on Post Closing Requests
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility
on Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon
Classification
EXHIBIT B-2(a)
Overview of Methodology of Allocation of Responsibility on Post Closing Requests
When Primary Servicer receives a request from a Mortgagor or other obligor
under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action ("Post
Closing Request") on its related Mortgage Loan or A/B Mortgage Loan, Primary
Servicer shall classify each Post Closing Request into one of the following
three (3) categories:
Post Closing Requests over which Primary Servicer shall have decision
making authority to analyze, consent to, approve and process such
requests, subject to consent rights in certain circumstances set forth in
Exhibit B-2(c) below and, where applicable, Deemed Category 1 Requests
("Category 1 Requests");
Post Closing Requests in which Primary Servicer shall gather information
from Mortgagor and shall deliver such information together with a written
analysis and recommendation for the consent and approval of such requests
to the Master Servicer or Special Servicer, as applicable; other than
Deemed Category 1 Requests ("Category 2 Requests"); and
Post Closing Requests in which Primary Servicer will have no involvement
but will refer the request to the Special Servicer ("Category 3
Requests").
The attached chart details how a Post Closing Request will be classified
into one of the three (3) categories specified above and the materials that
follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance with
the Servicing Standard, the terms of this Agreement, the Pooling and Servicing
Agreement and with respect to any A/B Mortgage Loan, its applicable A/B
Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection Description,
Payment and Collection Reporting or Property Inspection Description, which is
covered elsewhere in this Agreement.
EXHIBIT B-2(b)
Chart Showing Classification of Post Closing Requests
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Category When Applicable Examples Allocation of Fees
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1 Category 1 Post Closing Request is Transfer rights contemplated in Loan Primary Servicer collects entire
Requests (other than either (a) specifically Documents (including without administrative or processing fee
Deemed Category 1 authorized in the related limitation assignment and assumption (including without limitation
Requests) Loan Documents (as defined rights); partial releases defeasance fees), legal fees and
in Exhibit B-2(c)(A.1(b)), contemplated in Loan Documents; out-of-pocket expenses and 80%
either expressly as a easements contemplated in Loan of any additional fees or
matter of right in favor of Documents; evaluation of alterations portions of fees (including
the Mortgagor or upon the under specified threshold; without limitation transfer
satisfaction of certain administer, monitor and release of fees) payable to Master Servicer
specified conditions reserve or escrow amounts in under Pooling and Servicing
(including the exercise of accordance with reserve or escrow Agreement (i.e. transfer fee).
any specified standard of agreements; approval of leases below Other 20% of such additional
consent or judgment within threshold specified in Loan fees are payable to Master
such conditions subject to Documents; additional lien, monetary Servicer. Special Servicer would
the terms of this encumbrance or mezzanine financing receive any portion of fees due
Agreement); or (b) seeks placed on Mortgaged Property that is it under the Pooling and
the approval of the related specifically contemplated in Loan Servicing Agreement. Master
Mortgagee under the related Documents under specified Servicer may also collect its
Loan Documents for a Lease conditions; or process of defeasing out-of-pocket expenses which it
and/or the issuance of an a Mortgage Loan (except defeasance shall itemize in reasonable
SNDA for a Lease. of a Specially Serviced Mortgage detail.(1)
Loans which shall not be the
responsibility of the Primary
Servicer) and servicing of Mortgage
Loans and A/B Mortgage Loans that
have been defeased; approval of a
Lease requiring such approval of
Mortgagee under the Loan Documents;
or issuance of an SNDA.
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2 Category 2 Post Closing Request (other Consent to easement not contemplated For all Mortgage Loans, other
Requests for all than Category 3 Request) is in Loan Documents; partial releases than A/B Mortgage Loans: Primary
Mortgage Loans (a) not specifically not specifically contemplated in Servicer entitled to one hundred
(other than A/B authorized or is prohibited Loan Documents; or subordinate or percent (100%) of administrative
Mortgage Loans) and or not addressed in the mezzanine financing not specifically or processing fee. Additional
Deemed Category 1 Loan Documents; and (b) not contemplated in Loan Documents. fees are payable to Master
Requests seeking approval of a Lease Servicer and/or Special Servicer
requiring such approval of as specified in Pooling and
Mortgagee under the related Servicing Agreement. Master
Loan Documents or issuance Servicer may also collect its
of an SNDA. out-of-pocket expenses.(1)
For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
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3 Category 3 Post Closing Requests to Changes to maturity date, interest Primary Servicer not entitled to
Requests Money Terms, Defaulted rate, principal balance, fee. Master Servicer or Special
amortization
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(1) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of Sections
2.1, 2.3, 6.3 and 6.4 of this Agreement.
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Category When Applicable Examples Allocation of Fees
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Mortgage Loans or Mortgage term, payment amount or Servicer is entitled to fees as
Loans upon which a frequency; or provided in the Pooling and
Servicing Transfer Event any actions to loan in default. Servicing Agreement.(1)
has occurred.
EXHIBIT B-2(c)
Process for Handling Post Closing Requests Upon Classification
1. Process for disposition of Post Closing Requests Once Classification is Made.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
Category 1 Requests and Deemed Category 1 Requests:
i) If Primary Servicer classifies a Post Closing Request as a
Category 1 Request or Deemed Category 1 Request, it shall promptly (but in no
event more than five (5) Business Days after receiving such request) notify
Master Servicer of (a) such request; (b) Primary Servicer's classification of
the Post Closing Request as a Category 1 Request or Deemed Category 1 Request;
and (c) Primary Servicer's Materiality Determination regarding any Category 1
Consent Aspect involved in such request. Notwithstanding the foregoing, as a
result of the quarterly reconciliation of reserve accounts that Primary Servicer
provides to Master Servicer under this Agreement, Primary Servicer shall have no
obligation (a) except as required under Section 8.18(d) of the Pooling and
Servicing Agreement, to notify or seek the consent of Master Servicer or Special
Servicer (as applicable) of any disbursement made from an escrow or reserve
account pursuant to and in accordance with the terms of such agreement governing
such reserve or escrow or (b) to seek consent of Master Servicer to extend (1)
the time available to a Mortgagor to complete repairs, replacements or
improvements pursuant to an escrow or reserve agreement or (2) the expiration
date of any letters of credit associated with such escrow or reserve, as long as
(i) Primary Servicer promptly notifies Master Servicer in writing of such
extension; (ii) the amount being held pursuant to the applicable escrow or
reserve agreement at the time of the proposed extension is less than
$1,000,000.00; (iii) the length of such extension when added to all other
extensions granted after the Closing Date does not exceed one hundred eighty
(180) days; and (iv) any such extension is in accordance with the terms of this
Agreement (including without limitation the Servicing Standard) and the Pooling
and Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement.
ii) Primary Servicer shall evaluate the Category 1 Request or Deemed
Category 1 Request and process such request to meet the requirements set forth
in the loan documents for the applicable Mortgage Loan ("Loan Documents") in a
manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement. Such evaluation and processing may commence, and
continue but may not be completed prior to Primary Servicer's notice to Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request in
accordance with the terms of the Loan Documents, this Agreement and the Pooling
and Servicing Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement.
iii) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1 Requests:
a) If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
and the Loan Documents for such Mortgage Loan or A/B Mortgage
Loan expressly provide for a defeasance, Primary Servicer
shall treat such request as a Category 1 Request but shall, in
addition to the other provisions of this Section 1 of Exhibit
B-2(c), seek the prior written consent of Master Servicer
prior to consenting to such defeasance, which consent shall
not be withheld or delayed unreasonably when Primary Servicer
submits to Master Servicer the items substantially as set
forth on Appendix 1 of this
Agreement relating to such defeasance, and any such decision
of Master Servicer shall be in accordance with the terms of
the Loan Documents and the Servicing Standard. Failure of the
Master Servicer to notify the Primary Servicer in writing of
Master Servicer's determination to grant or withhold such
consent, within five (5) Business Days following the Primary
Servicer's delivery of the request for defeasance described
above and the relevant information collected on such
defeasance, shall be deemed to constitute a grant of such
consent.
b) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan)
to another Person who shall assume the Mortgage Loan or A/B
Mortgage Loan and the Loan Documents expressly permit such
assignment and assumption, subject to any conditions set forth
in the Loan Documents, Primary Servicer may treat such request
as a Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to
such assignment and assumption in accordance with the terms of
Section 8.7 of the Pooling and Servicing Agreement (subject to
any time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items substantially as set
forth on Appendix 2 of this Agreement relating to such
assignment and assumption. For the purpose of the foregoing
sentence, the term "expressly permits" shall have the meaning
assigned to it in Section 8.7 of the Pooling and Servicing
Agreement.
c) If a Mortgagor requests consent to place an additional lien,
monetary encumbrance or mezzanine financing on the related
Mortgaged Property and the Loan Documents expressly permit
such additional lien, monetary encumbrance or mezzanine
financing, subject to any conditions set forth in the Loan
Documents, Primary Servicer may treat such request as a
Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to
such additional lien, monetary encumbrance or mezzanine
financing in accordance with the terms of Section 8.7 of the
Pooling and Servicing Agreement (subject to any time periods
applicable to Primary Servicer or Special Servicer for the
giving, granting or deemed granting of such consent contained
in the Pooling and Servicing Agreement) by submitting to
Special Servicer the items substantially as set forth on
Appendix 3 of this Agreement relating to such additional lien,
monetary encumbrance or mezzanine financing. For the purpose
of the foregoing sentence, the term "expressly permits" shall
have the meaning assigned to it in Section 8.7 of the Pooling
and Servicing Agreement.
d) If a Mortgagor requests consent to enter into a Lease on the
related Mortgaged Property (and/or the associated issuance of
an SNDA for such Lease), which Lease (a) requires the consent
of the Mortgagee under the related Loan Documents and (b)
qualifies as a Significant Lease, Primary Servicer may treat
such request as a Category 1 Request but shall, in addition to
the other provisions of this Section 1 of Exhibit B-2(c), seek
the prior written consent of Master Servicer, which consent
shall not be withheld or delayed unreasonably, prior to
consenting to or disapproving of such Significant Lease
(and/or the related SNDA) by submitting to Master Servicer the
items substantially as set forth on Appendix 4 of this
Agreement relating to such Significant Lease (and/or related
SNDA). Failure of the Master Servicer to notify the Primary
Servicer in writing of Master Servicer's determination to
grant or withhold such consent within ten (10) Business Days
following the Primary Servicer's delivery of the request for
consent to the Lease, shall be deemed to constitute a grant of
such consent.
e) If Primary Servicer makes a Materiality Determination that a
Category 1 Consent Aspect is material, then Primary Servicer
shall treat such request as a Category 1 Request, but shall,
in addition to the other provisions of this Section A.1 of
this Exhibit B-2(c), seek the prior written consent of Special
Servicer prior to consenting to the applicable Category 1
Request, which consent shall not be withheld or delayed
unreasonably, and any such decision of Special Servicer shall
relate only to the Category 1 Consent Aspect and shall be in
accordance with the terms of the Loan Documents and the
Servicing Standard. Failure of the Special Servicer to notify
the Primary Servicer in writing of Special Servicer's
determination to grant or withhold such consent, within five
(5) Business Days following the Primary Servicer's delivery of
the request for consent to the Category 1 Consent Aspect,
shall be deemed to constitute a grant of such consent.
iv) Upon conclusion of the negotiations of the documentation for the
Category 1 Request or Deemed Category 1 Request, Primary Servicer may execute
and deliver the operative documents to be executed to effect the Category 1
Request and take the other actions necessary or appropriate to conclude such
request, in each case in accordance with the terms of this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
v) Concurrently with the execution of this Agreement, Master
Servicer shall provide to Primary Servicer a counterpart original of the Power
of Attorney executed by the Trust in favor of the Master Servicer and shall
execute and deliver to Primary Servicer a Power of Attorney attached to this
Agreement as Exhibit C. Primary Servicer shall promptly notify Master Servicer
of the execution and delivery of any document on behalf of the Master Servicer
and Trustee under such Power of Attorney ("POA Notice").
vi) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
1 Request or Deemed Category 1 Request. Such request shall not relieve Primary
Servicer of its obligations under this Agreement regarding a Category 1 Request
or Deemed Category 1 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
vii) Upon completion of each Category 1 Request or Deemed Category 1
Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Master Servicer and Special
Servicer (if its consent was required) and shall accompany such notice with a
brief summary of the Category 1 Request or Deemed Category 1 Request, a brief
summary of Primary Servicer's analysis and decision regarding such request, a
POA Notice (if required) and a counterpart original or copy of the operative
documents executed or received to effect the Category 1 Request or Deemed
Category 1 Request.
viii) Notwithstanding the foregoing with the consent of Master
Servicer, Primary Servicer may elect to classify and treat a Post Closing
Request that otherwise qualifies as a Category 1 Request or Deemed Category 1
Request, as a Category 2 Request instead. In such case, Primary Servicer
shall adhere to the provisions of this Agreement regarding Category 2 Requests
or Deemed Category 1 Requests, and all aspects of such request (including
without limitation the allocation of fees) shall be governed by the terms of
this Agreement covering Category 2 Requests. Primary Servicer's decision in any
one instance to treat a Post Closing Request that otherwise qualifies as a
Category 1 Request or Deemed Category 1 Request, as a Category 2 Request
instead, shall not compromise or affect its right on any other occasion to treat
a similar request as a Category 1 Request or Deemed Category 1 Request.
ix) Notwithstanding anything to the contrary in this Section 1, if a
Category 1 Request or Deemed Category 1 Request involves an action requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall not be permitted to take any such actions
without the consent of Special Servicer in accordance with such Section 8.18(d).
For any action relating to a Mortgage Loan or an A/B Mortgage Loan requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall have the responsibility to seek the consent of
Special Servicer in accordance with such section. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 1 Requests or Deemed Category 1 Requests as set forth above.
Category 2 Requests (other than Deemed Category 1 Requests):
x) If Primary Servicer classifies a Post Closing Request as a
Category 2 Request, it shall promptly (but in no event more than five (5)
Business Days after Primary Servicer's receiving such request) notify Master
Servicer of receiving such request, of the type of request and of Primary
Servicer's classification of the Post Closing Request as a Category 2 Request.
As part of such notice, Primary Servicer shall include the following:
a) If such type of request has not previously been the
subject of a Category 2 Request or a Requirements List
(as defined below) has not previously been provided to
Primary Servicer, then Primary Servicer shall request
from Master Servicer a detailed list of the requirements
to be satisfied for such request (the "Requirements
List"). Master Servicer shall promptly (but in no event
more than five (5) Business Days after receiving
notification of such request) provide to Primary
Servicer a Requirements List for such request.
b) If the type of Category 2 Request has previously been
the subject of a Post Closing Request, then Primary
Servicer shall submit the existing Requirements List to
Master Servicer. Primary Servicer may use such
Requirements List for such request unless Master
Servicer provides to Primary Servicer a replacement
Requirements List within five (5) Business Days of such
notice.
xi) A Requirements List (i) shall in no event be more burdensome
than that required by Master Servicer of other loans in the Trust for similar
Post Closing Requests; (ii) shall not require Primary Servicer to incur
additional third party costs or expenses; and (iii) shall require the gathering,
collection and assembling of information only and not the preparation,
evaluation, analysis of information or a recommendation regarding the Post
Closing Request.
xii) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall provide to Master Servicer all of the assembled
items, a list of the items collected from the Requirements List, a list of any
items not collected, any reasons why such items were not collected, a written
analysis of the Category 2 Request in light of the items collected in a form
reasonably satisfactory to Master Servicer, a
recommendation whether to approve or disapprove such request and the appropriate
division of the applicable fees in accordance with the terms of this Agreement
and the Pooling and Servicing Agreement.
xiii) Master Servicer shall use its reasonable best efforts to
notify Primary Servicer with a consent or disapproval of the Category 2 Request
within ten (10) Business Days of receiving such assembled items, analysis and
recommendation. If Master Servicer disapproves such request, it shall provide
Primary Servicer the reasons for such disapproval. If Master Servicer approves
such request, Primary Servicer shall promptly process the Category 2 Request in
a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall draft, or cause to be drafted,
all documents necessary to effect the Category 2 Request in accordance with the
terms of the consent, the Loan Documents, this Agreement and the Pooling and
Servicing Agreement, and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall deal directly with the
applicable Mortgagor regarding a Category 2 Request after Primary Servicer
submits the items on the applicable Requirements List.
xiv) Upon conclusion of the negotiations of the documentation for
the Category 2 Request for which Master Servicer has granted its consent,
Primary Servicer may execute and deliver the operative documents to be executed
to effect the Category 2 Request and take the other actions necessary or
appropriate to conclude such request, in each case in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
xv) Upon the request of Primary Servicer, Master Servicer shall
execute and deliver the documents necessary or appropriate to effect a Category
2 Request, which documents shall be prepared by the Primary Servicer. Such
request shall not relieve Primary Servicer of its obligations under this
Agreement regarding a Category 2 Request, including without limitation its
obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement and any indemnification
obligation of Primary Servicer.
xvi) Upon completion of each Category 2 Request, Primary Servicer
shall promptly (but in no event more than ten (10) Business Days after
concluding such request) notify Master Servicer and shall accompany such notice
with a copy of the operative documents executed or received to effect the
Category 2 Request.
xvii) Notwithstanding anything to the contrary in this Section 2, if
a Category 2 Request involves an action requiring the consent of Special
Servicer under Section 8.18(d) of the Pooling and Servicing Agreement, Primary
Servicer shall not be permitted to take any such action without the consent of
Special Servicer in accordance with such Section 8.18(d). For any action
relating to a Mortgage Loan or an A/B Mortgage Loan requiring the consent of
Special Servicer under Section 8.18(d) of the Pooling and Servicing Agreement,
Primary Servicer shall have the responsibility to seek the consent of Special
Servicer in accordance with such section. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 2 Requests as set forth above.
Category 3 Requests:
xviii) If Primary Servicer classifies a Post Closing Request as a
Category 3 Request, it shall promptly (but in no event more than five (5)
Business Days after receiving such request) notify Master Servicer and Special
Servicer of receiving such request and of Primary Servicer's classification of
the Post Closing Request as a Category 3 Request and shall refer such Category 3
Request to the Special Servicer for handling in accordance with the Pooling and
Servicing Agreement.
xix) Upon such referral, Primary Servicer shall notify the
applicable Mortgagor of such referral and shall direct the Mortgagor that all
further correspondence and interaction regarding the applicable Category 3
Request shall be directed to and through the Special Servicer (unless the
Special Servicer and Master Servicer shall otherwise direct the Primary
Servicer). Primary Servicer shall forward all correspondence and other
information regarding such request in its possession to Special Servicer.
2. Dispute of Classification.
Notification of Dispute. If either Master Servicer or Special
Servicer disputes the classification of Primary Servicer of any Post Closing
Request (for purposes of this Section B, the term "classification" shall include
a Materiality Determination of Primary Servicer regarding a Category 1 Consent
Aspect with respect to such Post Closing Request), then Master Servicer or
Special Servicer, as applicable, shall notify Primary Servicer of such dispute
promptly (but in no event more than five (5) Business Days from Primary
Servicer's notice of such classification) in writing and the specific reasons
for such dispute. The parties shall then work in good faith for a period not
more than five (5) Business Days to resolve the classification of the Post
Closing Request. Primary Servicer's classification of a Post Closing Request
shall govern the handling of such request absent Primary Servicer's receipt of
notice of such dispute within the specified time period but shall not diminish
the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
Resolution of Dispute in Absence of Agreement. If after such good
faith efforts to resolve such classification dispute the parties cannot agree to
a classification, then the following shall apply: For Mortgage Loans or A/B
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is in excess of two percent (2%) of
the then Aggregate Principal Balance, then the good faith classification of the
Master Servicer or Special Servicer, as applicable, shall govern. For Mortgage
Loans that individually, or together with all other Mortgage Loans and A/B
Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is equal to or less than two percent
(2%) of the then Aggregate Principal Balance, then the good faith classification
of the Primary Servicer shall govern; provided that, in no event, shall Primary
Servicer's classification govern if such classification would, in the sole
judgment of Master Servicer or Special Servicer (as applicable), conflict with
any provision of the Pooling and Servicing Agreement or result in a default by
Master Servicer or Special Servicer under the Pooling and Servicing Agreement.
Processing of Post Closing Request During Dispute. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist but in any event the processing of a Post Closing
Request must be accomplished in a manner consistent and in compliance with the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
EXHIBIT B-3
Forms of Property Inspection Reports
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-TOP24
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
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1. Asset Files
Original credit file management X
Original collateral file (security) X
Authorized parties list for request for release of collateral from Trustee X X
Establish servicing files criteria X X
Provide access to servicing files and copies of servicing files or of specific docs X
upon request to the Master Servicer
Request delivery of files from Trustee upon request and certification of Primary X
Servicer
2. Property Taxes
Preparation and delivery of quarterly tax delinquency reports X
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans with/without escrows X
Notification of advance requirement 3 business days prior to advance being required X
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Preparation and delivery of quarterly insurance tickler reports X
Monitoring of insurance status - Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement qualifications X
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
Recommendation of payment or force placement of insurance with/without escrow X
Notification of advance requirement or force placement of insurance 3 business days X
prior to advance being required
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
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Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Category 1 Requests and Deemed Category 1 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
Category 2 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
4. UCC Continuation Filings
Preparation and delivery of quarterly UCC tickler report X
Maintain tickler system of refiling the dates on all Loans X
File UCC Continuation Statements X
Pay recording fees X
Monitor tickler system X
5. Collection/Deposit/Distribution of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments X
Remittance of available Primary Servicer P&I payments to Master Servicer and B Note X
holders, as applicable (net of Aggregate Servicing Fee and other fees payable to the
Primary Servicer by the B Note holders)
Provide Collection Reports to Master Servicer X
Distribution of P&I payments to the Trustee X
Distribution of Special Servicer compensation X
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone 3 days after delinquent date X
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180, and 90 days prior to X
the related maturity date
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
8. Escrows
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income required X
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Master Servicer X
Approve payoff calculations and telecopy approval to Primary Servicer within five (5) X
Business Days
10. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating statements, budgets, rent rolls and borrower X
financial statements, as applicable.
Deliver Operating Statement Analysis Report, CMSA Financial File and NOI Adjustment X
Worksheet in accordance with Section 2.1(c)(viii) of this Agreement.
Deliver one (1) copy of quarterly and annual operating statements, budgets, rent X
rolls and borrower financial statement, as applicable, within thirty (30) days of
Primary Servicer's receipt
Complete CMSA Loan Setup File for Mortgage Loans X X
Complete CMSA Loan Periodic Update File for Mortgage Loans X
Complete and deliver CMSA Property File for Mortgage Loans X
Complete and deliver quarterly Operating Statement Analysis Report and CMSA Quarterly X X
Financial File in accordance with Section 2.1(c)(viii) of this Agreement.
Cash account Reconciliations - Copies of monthly bank statements for all deposit, X
escrow and reserve accounts
CMSA Supplemental Reports
Complete Servicer Watch List X
Complete Comparative Financial Status Report X
Delinquent Loan Status Report X
REO Status Report X
Historical Loan Status Report X
Historical Liquidation Report X
CMSA Loan Level Reserve/LOC Report X
11. Advancing
Determination of Non-Recoverability X
12. Borrower Inquiries/Performing Loans
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
Performing Loans - respond to routine billing questions X
Category 1 Requests and Deemed Category 1 Requests
Assumptions & Due on sale:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of assumption X
Consent to assumption X
Close assumption X
Category 2 Requests
Assumptions & Due on sale:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of assumption X X
Consent to assumption X
Close assumption (directly with Borrower) X
Category 1 Requests and Deemed Category 1 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of additional lien, monetary encumbrance or mezzanine financing X
Consent to additional lien, monetary encumbrance or mezzanine financing X
Close additional lien, monetary encumbrance or mezzanine financing X
Category 2 Requests
Additional Liens, Monetary Encumbrances or Mezzanine Financing:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of additional lien, monetary encumbrance or mezzanine financing X X
Consent to additional lien, monetary encumbrance or mezzanine financing X
Close additional lien, monetary encumbrance or mezzanine financing X
(directly with Borrower)
Modifications (Non-Money Terms), Waivers, Consents and Extensions up to 60 days (not
otherwise provided in this Agreement):
Initial Borrower contact and data gathering X
Underwriting and analysis X
Approval of modification and extensions up to 60 days (Category 1 Requests and X
Deemed Category 1 Requests)
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days (Category 2 Request) X
Consent to modification and waivers and other consents (not otherwise provided in X
this Agreement)
Closing Documents and Closing X
Modification (Money Terms): X
Extensions of Maturity Date (more than 60 days): X
Response to request for Discounted Payoffs, Workouts, Restructures, Forbearances and X
Casualties
Condemnation (only with respect to Specially Serviced Mortgage Loans the Special X X X
Servicer will perform such functions)
13. Monthly Reporting (Hardcopy & Electronic mail)
Day One Report X
Delinquency and past due reporting on all Loans X
Deliver on April 25, July 25, October 25 and January 25 of each year a Quarterly X
Servicing Accounts Reconciliation Certification in the form of Exhibit D
14. Category 1 Requests and Deemed Category 1 Requests
Release of Collateral
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee upon Primary Servicer request and X
certification
Preparation and recordation of release deeds all Loans (full and partial) X
Category 2 Requests
Release of Collateral
Initial Borrower contact and data gathering X
Underwriting and analysis X
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee X
Preparation and recordation of release deeds all Loans (full and partial) X
15. Property Annual Inspections
Conduct site inspection per Pooling and Servicing Agreement requirement X
Provide 3 copies of site inspection reports to the Master Servicer within 30 days of X
inspection but not later than December 15 of each year beginning in 2006
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-----------------------------------------------------------------------------------------------------------------------------------
16. Preparation of servicing transfer letters X
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting requirements) X
and delivery of copies to the Master Servicer by January 31 of each year
18. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer Form 10-D X
Information Reports and Primary Servicer Form 10-K Information Reports at the times
and in the manner set forth in Section 5.13(c) of this Primary Servicing Agreement
19. Provide annual statement of compliance at the times and in the manner set forth in X
Section 5.13(c) of this Primary Servicing Agreement
20. Provide either (a) a report regarding Primary Servicer's assessment of compliance with X
servicing criteria and a report by a registered public accounting firm that attests to
and reports on such assessment report or (b) a report of a firm of independent public
accounts based on USAP-compliant examinations, as the case may be, at the times, in
the manner and as specified in Section 5.13(c) of this Primary Servicing Agreement.
21. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and in the manner X
set forth in Section 5.13(c)(v) of this Primary Servicing Agreement
22. Compensation
Primary Servicer Fee and other fees payable to the Primary Servicer by the B Note X
holders
Investment earnings on Primary Servicer Collection Account X
Investment earnings on tax & insurance reserves not payable to borrower X
Investment earnings on reserve accounts not payable to borrower X
Late charges to the extent collected from borrower (offsets advance interest per X
Pooling and Servicing Agreement)
23. Defeasance
Coordinate, analyze, approve, and process defeasance request X
Consent to defeasance X
Service Defeasance Loans X
Retain all fees associated with Defeasance Loans X
EXHIBIT C
Form of Power of Attorney from Master Servicer
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2006-TOP24
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
_______________________________________, acting solely in its capacity as
Master Servicer ("Master Servicer"), under the Pooling and Servicing Agreement
dated as of November 1, 2006 (the "Pooling and Servicing Agreement") and a
Primary Servicing Agreement dated as of November 1, 2006 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24, does hereby nominate, constitute and appoint
Xxxxx Fargo Bank, National Association ("WFB"), as Primary Servicer under the
Primary Servicing Agreement ("Primary Servicing Agreement"), 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 < > to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by WFB of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto WFB 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 < > 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 ______________.
_______________________________________, acting solely in
its capacity as Master Servicer under the Pooling and
Servicing Agreement and the Primary Servicing Agreement
By:_______________________________________
Name:
Title:
EXHIBIT D
Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer: Xxxxx Fargo Bank, National Association
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP24
Pursuant to the Primary Servicing Agreement between
_______________________________________ ("Master Servicer") and Xxxxx Fargo
Bank, National Association ("Primary Servicer") for the transaction referenced
above, I hereby certify with respect to each mortgage loan serviced by Primary
Servicer for Master Servicer for such transaction that within 25 days after the
end of each of the months of [January, February and March][April, May and
June][July, August and September][October, November and December], any and all
deposit accounts, escrow accounts and reserve accounts, and any and all other
collection accounts and servicing accounts, related to such mortgage loan have
been properly reconciled, and the reconciliations have been reviewed and
approved, by Primary Servicer's management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Xxxxx Fargo Bank, National Association
Date: [April, July, October, January] 25, [20__]
D-1
EXHIBIT E
Form of Cover Page for Report or Certification
Compliance Information Report
Identifying Information for this Report:
Date of Submission: _______
Depositor: __________________________________________
Trust: __________________________________________
Pooling and Servicing Agreement: Pooling and Servicing Agreement dated as
of _______, ___, among
____________________________________.
Subservicing Agreement: Subservicing Agreement dated as of
________, ___, between
_______________________________________,
as master servicer, and ______________, as
Primary Servicer.
Master Servicer: _______________________________________
Primary Servicer: __________________________________________
Primary Servicer Contact Person: [Name][telephone][facsimile][email
address]
This Report Contains the Following Information:
Immediate Reporting:
|_| Form 8- K Reporting Information
Monthly Reporting:
|_| Form 10-D Reporting Information
Annual Reporting:
|_| Form 10-K Reporting Information
Annual Compliance:
|_| Compliance Assessment Report (Item 1122(a))
by Primary Servicer on
Compliance With Servicing Criteria in Item
1122(d) of Regulation AB
|_| Attestation Report (Item 1122(b)) by
Registered Public Accounting Firm
on Compliance Assessment Report
|_| Statement of Compliance (Item 1123)
|_| Xxxxxxxx-Xxxxx Back-Up Certification
This Report Amends Prior Reporting Information:
|_| Yes - Date of Submission of Prior Reporting
Information:
_____/______/______
E-1
|_| No
E-2
APPENDIX 1
Items Required for Defeasance Submission to Master Servicer
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed
items to seek the consent of Master Servicer to a defeasance of a Mortgage Loan
or an A/B Mortgage Loan that Primary Servicer is permitted to process under this
Primary Servicing Agreement.
A. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
B. An Executed Certificate substantially in the form attached hereto at
Exhibit A.
C. (i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage
Loan, and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral..
D. Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required
of the related Mortgagor under the related Loan Documents without
additional expense to Primary Servicer or Master Servicer.
Appendix 1
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
--------------------
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Xxxxx Fargo Bank,
National Association, as primary servicer (the "Primary Servicer") pursuant to
that Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
_________, ____, between Primary Servicer and Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") related to the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP24.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
Exhibit A to Appendix 1
APPENDIX 2
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)
Page 1 of Appendix 2
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: Primary Servicer 40% - $
_____, Master Serv. 10% - $
LNR Partners, Inc., 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:
2. 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.
3. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
4. 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
5. 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);
6. Explain results of credit checks, legal searches and banking credit
references (two required)
7. If Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2 of Appendix 2
8. 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):
E. Vacancy
F. Rents
G. Taxes
H. 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)
3 of Appendix 2
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:
LNR Partners, Inc., acting solely in its capacity as Special Servicer
By: _______________________________________
Title: ____________________________________
Date: _____________________________________
4 of Appendix 2
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
5 of Appendix 2
APPENDIX 3
Additional Lien, Monetary Encumbrance or Mezzanine Financing Submission to
Special Servicer
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
Page 1 of Appendix 3
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
2 of Appendix 3
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.
3 of Appendix 3
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:
LNR PARTNERS, INC., acting solely in its capacity as
Special Servicer
By: _______________________________________
Title: ____________________________________
Date: _____________________________________
4 of Appendix 3
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
5 of Appendix 3
APPENDIX 4
Lease Summary Submission Package
Loan # ________________________
Borrower Name:
________________________________________________________________________________
Property Name:
________________________________________________________________________________
Total Property NRSF (Per Rent Roll):
________________________________________________________________
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
________________________________________________________
LEASE INFORMATION
1. Parties to Lease
a. Landlord:___________________________________________________________
b. Rent Commencement Date: ____________________________________________
c. Tenant:_____________________________________________________________
d. Parent Company (if applicable):_____________________________________
e. Subtenant and/or Assignee (if applicable):__________________________
f. If Yes, Is Original Tenant Liable?
(Y/N)_______________________________________________________________
g. Guarantor(s):_______________________________________________________
h. Tenant financial statements attached:_______________________________
i. If not, why:________________________________________________________
2. Basic Lease Terms
a. Lease Commencement Date:
____________________________________________________________________
b. Rent Commencement Date:
____________________________________________________________________
c. Lease Expiration:
____________________________________________________________________
d. Unexercised Extension Options (Y/N):
____________________________________________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs):
____________________________________________________________________
-Terms:
____________________________________________________________________
e. Lease Type (Credit/Form):
Page 6 of Appendix 3
_______________________________________________________________________
f. Use of Premises:
____________________________________________________________________
3. Lease Economic Terms
a. Current Base Annual Rent $
____________________________________________________________________
b. Scheduled Increases Date/New Annual:
____________________________________________________________________
c. Increases/Option Periods (Date/New Annual Rent/PSF):
____________________________________________________________________
d. Percentage Rent Clause? Breakpoint:
____________________________________________________________________
e. TI Amortization Component:
____________________________________________________________________
f. Rent Concessions (enter month):
____________________________________________________________________
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes
____________________________________________________________________
b. Insurance
____________________________________________________________________
c. Management
Fees _______________________________________________________________
d. Utilities___________________________________________________________
e. Non-Structural
Maintanance/Repair _________________________________________________
f. Contract Services
____________________________________________________________________
g. Administrative (% of CAM)
____________________________________________________________________
h. Professional
Fees________________________________________________________________
i. CAM_________________________________________________________________
7 of Appendix 3
5. Options
a. Purchase Option (Note Date/Terms):
____________________________________________________________________
b. Right of First Refusal (Note Date/Terms/Reference
DOT): ______________________________________________________________
6. Other Information (Only note those that apply):
a. Expense Stop
Formula ____________________________________________________________
b. Base
Year _______________________________________________________________
c. Security/Other
Deposits ___________________________________________________________
d. Tenant Improvement
Allowance __________________________________________________________
-Above Standard TI's?________________________________________________
7. Compliance
a. Lease meets all requirements of the Loan Documents. (Y/N) If no,
specify_____________________________________________________________
b. Landlord has complied with all leasing requirements in the Loan
Documents. (Y/N) If no,
specify_____________________________________________________________
8. Recommendation
Request for Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Master Servicer to
the foregoing Lease Approval.
By: ___________________________________
Title: ________________________________
Date: _________________________________
Consent to Lease Approval is given:
_______________________________________, acting solely in its capacity as Master
Servicer
By: _____________________________________
Title:___________________________________
Date: ___________________________________
8 of Appendix 3
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Loan Documents
9 of Xxxxxxxx 0
XXXXXXX XX
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 documents Actual PDF/TIF As received
Property Inspection Actual PDF/TIF As received/Quarterly
Payments Received After Determination Date Report (1) Monthly Excel Master Servicer Remittance Date
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 (Trustee) Quarterly Access/Excel Monthly/Distribution Date
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) ARCap 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.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
EXHIBIT CC
Form of Xxxxxxxx-Xxxxx Certification
CERTIFICATION
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24, issued pursuant to the Pooling and
Servicing Agreement dated as of October 1, 2006 (the "Pooling and Servicing
Agreement") between Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as Trustee and Custodian (the "Trustee") and Xxxxx Fargo
Bank, National Association, as Paying Agent, Certificate Regisgtrar and
Authenticating Agent (the "Paying Agent").
Capitalized terms used but not defined herein have the meanings set forth
in the Pooling and Servicing Agreement.
------------------------------------------
I, [identity of certifying individual], the senior officer in charge of
securitization of the Depositor, hereby certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-TOP24 (the
"Exchange Act Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a
whole do 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 with respect
to the period covered by this report;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act Periodic Reports;
4. Based on my knowledge and the servicer compliance statement(s) required
in this report under Item 1123 of Regulation AB, and except as disclosed in the
Exchange Act Periodic Reports, the servicer(s) [has/have] fulfilled [its/their]
obligations under the Pooling and Servicing Agreement or the applicable
sub-servicing agreement or primary servicing agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an
exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties;
o Wells Fargo Bank, National Association, as Master Servicer;
o ARCap Servicing, Inc., as Special Servicer;
o Wells Fargo Bank, National Association, as Paying Agent;
o Principal Global Investors, LLC, as Primary Servicer;
o LaSalle Bank National Association, as Trustee and Custodian;
and
o [names of sub-servicers]
Date: [___]
By
----------------------------------
Name:
Title:
EXHIBIT CC-1
Form of Xxxxxxxx-Xxxxx Backup Certification
CERTIFICATION
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24, issued pursuant to the Pooling and
Servicing Agreement dated as of October 1, 2006 (the "Pooling and Servicing
Agreement") between Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as Trustee and Custodian and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Regisgtrar and Authenticating Agent
(the "Paying Agent") [./; and]
[the Subservicing Agreement, dated as of _____ (the "Subservicing
Agreement") between [identify parties].
Capitalized terms used but not defined herein have the meanings set
forth in the Subservicing Agreement or, if not defined in the Subservicing
Agreement, then the meanings set forth in the Pooling and Servicing Agreement.
------------------------------------------
I, [identity of certifying individual], hereby certify to the Depositor
and the Master Servicer and its officers, directors and Affiliates
(collectively, the "Certification Parties") as follows, with the knowledge and
intent that the Certification Parties will rely on this Certification in
connection with the certification concerning the Trust to be signed by an
officer of the Depositor and submitted to the Securities and Exchange Commission
pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the report of information provided by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] for
inclusion in the Annual Report on Form 10-K ("Form 10-K") relating to the Trust
and all reports of information by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] for inclusion in the Asset-Backed
Issuer Distribution Reports on Form 10-D ("Form 10-D") relating to the Trust
(such reports by the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer], collectively, the "[Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports");
2. Based on my knowledge, the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by the Form 10-K;
3. Based on my knowledge, all distribution, servicing and other
information required to be provided in the [Master Servicer/Special
Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports
under the provisions of the [Pooling and Servicing/Subservicing] Agreement for
the calendar year preceding the date of the Form 10-K is included in the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
Periodic Reports;
4. Based on my knowledge and the compliance review conducted in preparing
the [Master Servicer/Special Servicer/Paying Agent/Trustee/Primary
Servicer/Subservicer]'s compliance statement under the [Pooling and
Servicing/Subservicing] Agreement in connection with Item 1123 of Regulation AB,
and except as disclosed in the [Master Servicer/Special Servicer/Paying
Agent/Trustee/Primary Servicer/Subservicer] Periodic Reports, the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer] has
fulfilled its obligations under the [Pooling and Servicing/Subservicing]
Agreement; and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required under
the [Pooling and Servicing/Subservicing] Agreement to be included in this
certification in connection with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18, have been included as an exhibit to this certification,
except as otherwise disclosed in this certification. Any material instances of
noncompliance described in such reports have been disclosed in this
certification.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: [name of
trustee, name or paying agent, certificate administrator or other similar party;
name of depositor; name of master servicer; name of other subservicer].
This Certification is being signed by me as an officer of the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
responsible for reviewing the activities performed by the [Master
Servicer/Special Servicer/Paying Agent/Trustee/Primary Servicer/Subservicer]
under the [Pooling and Servicing/Subservicing] Agreement.
Date: [___]
By
----------------------------------
Name:
Title:
EXHIBIT DD
[NOT APPLICABLE FOR TOP24]
FORM OF TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
October 31, 2006
[INSERT ADDRESSES OF RELATED TRUSTEE,CERTIFICATE REGISTRAR, PAYING AGENT, MASTER
SERVICER AND SPECIAL SERVICER]
[Holders of the [Name of Non-Serviced Companion Loans]]
Re: Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-TOP24, Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 - [Name of
Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Bear Xxxxxxx Commercial Mortgage Securities Trust 2006-TOP24, Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP24 (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 Bear
Xxxxxxx Commercial Mortgage Securities Trust 2006-TOP24 established by Bear
Xxxxxxx Commercial Mortgage Securities 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 Certificate Registrar and Paying Agent for the registered
holders of the Trust Fund (the "Certificate Registrar"), 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 Xxxxx Fargo Bank, National Association, 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 Certificate
Registrar and the Master Servicer.
Thank you for your attention to this matter.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar and Paying Agent for the Holders of the Bear Xxxxxxx
Commercial Mortgage Securities Trust 2006-TOP24, Commercial Mortgage
Pass-Through Certificates, Series2006-TOP24
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
SCHEDULE I TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
ARCap Servicing, Inc., as Special Servicer
0000 Xxxxx XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxx Fargo Bank, National Association, as Master Servicer
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
SCHEDULE II TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
(BSCMSI 2006-TOP24 Collection Account Information)
SCHEDULE I
BSCMI LOAN SCHEDULE
BSCMI
Mortgage Loan Seller Loan Number Property Name Cut-Off Date Balance Note Date
------------------------------------------------------------------------------------------------------------
3 BSCMI 47781 Dulles Executive Plaza $68,750,000 08/30/2006
4 BSCMI 00000 X Xxxxx Xxx Xxxxx $65,000,000 06/26/2006
8 BSCMI 48354 Casa Xxxxxx Hotel $40,000,000 09/28/2006
9 BSCMI 47631 Lincoln Mall $33,835,000 08/09/2006
10 BSCMI 00000 Xxxx Xxxxxx Xxxxxx Xxxxxx $24,000,000 08/28/2006
11 BSCMI 48172 000 Xxxx 00xx Xxxxxx $24,000,000 08/23/2006
12 BSCMI 00000 Xxxx Xxxxx Xxxxxxx $22,550,000 07/21/2006
18 BSCMI 45488 Honey Creek Commons $16,000,000 06/29/2006
19 BSCMI 46354 AMC Mesa Grand 24 $15,917,806 05/22/2006
22 BSCMI 46355 Rave Xxxxx $14,922,943 05/22/2006
32 BSCMI 47795 Seminary Center $10,000,000 08/09/2006
35 BSCMI 00000 Xxxxxxxx Xxxxx $9,973,711 06/22/2006
43 BSCMI 00000 Xxxxxxxx Xxxxxxxx Xxxxx $7,575,000 08/07/2006
64 BSCMI 46842 Xxxxx Xxxx Office $5,983,365 08/14/2006
70 BSCMI 46383 Rocky Hill $5,050,000 07/06/2006
92 BSCMI 48603 199 & 000 Xxx Xxxxxx $4,175,828 03/23/2006
000 XXXXX 00000-x 000 Xxxx Xxxxxx (A) $1,500,000 07/13/2006
119 BSCMI 46937-b 00000 Xxxxxxxxx Xxxxxxxxx (A) $1,195,020 07/13/2006
121 BSCMI 47333 Ukiah Tractor Supply Co. $2,600,000 07/13/2006
131 BSCMI 47963 CVS - Armenia $2,197,894 08/25/2006
Original Term to Maturity or ARD Remaining Term Orig. Amort. Rate Monthly Debt Service Seasoning DEF
------------------------------------------------------------------------------------------------------------------------
3 120 119 IO 5.851% $335,214 1
4 138 135 360 6.142% $337,299 3 107
8 120 120 360 5.800% $196,019 0 95
9 84 83 IO 5.275% $148,733 1
10 120 119 IO 5.891% $119,456 1
11 120 119 360 5.960% $120,856 1 93
12 84 82 IO 5.225% $98,186 2
18 84 81 IO 5.326% $71,013 3
19 120 116 300 6.372% $106,752 4 90
22 120 116 300 6.372% $100,080 4 90
32 120 119 IO 5.843% $49,368 1 93
35 120 117 360 6.059% $60,335 3 91
43 84 83 IO 5.225% $32,983 1
64 120 119 204 6.212% $47,695 1 94
70 120 118 360 6.035% $25,750 2 93
92 120 114 360 5.830% $24,724 6 86
118 120 118 360 6.041% $7,656 2
119 120 118 240 6.041% $8,626 2
121 120 118 IO 6.353% $13,956 2
131 120 119 360 6.205% $13,481 1 94
DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2% 1% Open YM Formula Admin Cost Rate
-----------------------------------------------------------------------------------------------------------------------------
3 83 2 C 3.165
4 4 3.165
8 1 3.165
9 47 2 C 3.165
10 24 92 4 E 3.165
11 2 3.165
12 47 2 C 3.165
18 47 2 C 5.165
19 2 3.165
22 2 3.165
32 2 3.165
35 2 3.165
43 47 2 C 3.165
64 1 3.165
70 1 3.165
92 4 3.165
118 93 4 N 3.165
119 93 4 N 3.165
121 93 26 1 O 3.165
131 1 3.165
Master Service Fee Rate Primary Service Fee Rate Master Excess Serv. Fee Rate (bps)
---------------------------------------------------------------------------------------------
3 2.00 1.00 0.00
4 2.00 1.00 0.00
8 2.00 1.00 0.00
9 2.00 1.00 0.00
10 2.00 1.00 0.00
11 2.00 1.00 0.00
12 2.00 1.00 0.00
18 2.00 3.00 0.00
19 2.00 1.00 0.00
22 2.00 1.00 0.00
32 2.00 1.00 0.00
35 2.00 1.00 0.00
43 2.00 1.00 0.00
64 2.00 1.00 0.00
70 2.00 1.00 0.00
92 2.00 1.00 0.00
118 2.00 1.00 0.00
119 2.00 1.00 0.00
121 2.00 1.00 0.00
131 2.00 1.00 0.00
Primary Excess Servicing Fee Rate (bps) Deal Fees Trustee Fee Rate Other Master Fee
-----------------------------------------------------------------------------------------------
3 0.00 3.00 0.165 0.00
4 0.00 3.00 0.165 0.00
8 0.00 3.00 0.165 0.00
9 0.00 3.00 0.165 0.00
10 0.00 3.00 0.165 0.00
11 0.00 3.00 0.165 0.00
12 0.00 3.00 0.165 0.00
18 0.00 5.00 0.165 0.00
19 0.00 3.00 0.165 0.00
22 0.00 3.00 0.165 0.00
32 0.00 3.00 0.165 0.00
35 0.00 3.00 0.165 0.00
43 0.00 3.00 0.165 0.00
64 0.00 3.00 0.165 0.00
70 0.00 3.00 0.165 0.00
92 0.00 3.00 0.165 0.00
118 0.00 3.00 0.165 0.00
119 0.00 3.00 0.165 0.00
121 0.00 3.00 0.165 0.00
131 0.00 3.00 0.165 0.00
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
WFB
Mortgage Loan Seller Loan Number Property Name Cut-Off Date Balance
-----------------------------------------------------------------------------------------------------------------------------
5 WFB 510904729 Hilton Tapatio $55,250,000
7 WFB 310904835 Xxxxxxx Station Shopping Center $41,500,000
14 WFB 310904834 Xxxxxxx Station North $21,900,000
16 WFB 310902785 Union Square Building $19,637,967
17 WFB 310904548 The Southlands $17,000,000
23 WFB 310904576 NetScout $13,464,150
25 WFB 310904530 Mesa South Center $12,200,000
28 WFB 610904274 City National Bank Building $11,000,000
41 WFB 310904384 Eagle Marketplace $7,600,000
47 WFB 610904639 The Offices at Sweetwater $6,920,000
48 WFB 310904609A P & R Properties Portfolio - Clinton Corners Retail (I) $2,319,000
49 WFB 310904609B P & R Properties Portfolio - Countryside Plaza (I) $1,728,000
50 WFB 310904609C P & R Properties Portfolio - Canterbury Office (I) $1,660,000
51 WFB 310904609D P & R Properties Portfolio - Willow Wood Office (I) $1,168,000
66 WFB 310904403 000 Xxxxxxxx Xxxxx $5,750,000
68 WFB 310904467 12885-12893 Alcosta Boulevard $5,589,738
73 WFB 310904541 North Canyons Office Park $4,993,037
77 WFB 620904429 Bryman College Phoenix $4,978,093
78 WFB 410904668 College Square III $4,800,000
79 WFB 310903634 Red Mountain SS $4,795,303
82 WFB 620904585 Royal Freeport Business Center $4,500,000
83 WFB 310904507 Hilltop Commons $4,440,000
89 WFB 610904640 Westland Tech Center $4,305,000
95 WFB 410904689 Springfield Manor MHP $4,000,000
96 WFB 310904542 In-Shape Health Club $3,994,515
98 WFB 410904617 Xxxxxxxxxx Plaza Two $3,796,647
103 WFB 410904421 0000 Xxxx 000xx Xxxxxx $3,250,000
110 WFB 410904685 The Plaza at Royal Oaks $2,850,000
111 WFB 410904566 RitePlace Storage $2,795,216
113 WFB 410904500 Tractor Supply - Harrisburg, PA $2,748,000
114 WFB 410904545 Woodland Harvest Square $2,747,436
115 WFB 620904502 Parkside Cintas $2,725,593
116 WFB 620904350 Lock it Lockers $2,697,463
117 WFB 410904537 Lapeer Shopping Center $2,695,355
120 WFB 410904396 Central Plaza (Poulsbo) $2,693,065
122 WFB 410904302 Highlander Apartments $2,591,086
123 WFB 410904405 Safeway Sahuarita Retail Center $2,500,000
125 WFB 410904687 Ridgewood & Sunrise MHP $2,300,000
127 WFB 410904554 000 Xxxxxxxxx Xxxx $2,242,362
128 WFB 410904107 Maple Plain Apartments $2,234,522
133 WFB 620904567 Home Depot Shops $1,950,000
135 WFB 410904769 Walgreen's - Oregon $1,898,130
140 WFB 410903984 Midlothian 7-11 $1,498,716
141 WFB 410904377 0000 XX Xxxxxxxxx Xxxxxxx $1,494,962
142 WFB 410904535 Woodland Business Park $1,450,000
146 WFB 410904460 Xxxxxxx Industrial Park $1,386,736
147 WFB 410904578 0000 Xxxx Xxxxxxxx Xxxxxx Retail $1,354,745
148 WFB 310904385 Evergreen Villa MHC $1,200,000
149 WFB 410904495 Verizon Wireless Retail Store $1,147,396
150 WFB 410904579 0000 Xxxx Xxxxxxxx Xxxxxx Retail $1,022,053
151 WFB 410904704 Xxxxxx Estates MHP $1,000,000
152 WFB 410904688 Cumberland MHP $1,000,000
154 WFB 410904555 0000 Xxxxxx Xxxxx $999,088
155 WFB 620904664 000 Xxxxx - Xx. Xxxx $912,000
156 WFB 410904581 0000 Xxxx Xxxxxxxx Xxxxxx Retail $897,169
157 WFB 410904580 6430- 0000 Xxxx Xxxxxxxx Xxxxxx Retail $783,274
158 WFB 620904066 0000-0000 Xxxx Xxxxx Xxxxxx and 000-000 Xxxxx Xxxxxx Xxxxxx $748,925
Note Date Original Term to Maturity or ARD Remaining Term Orig. Amort. Rate Monthly Debt Service
-------------------------------------------------------------------------------------------------------------------
5 08/29/2006 120 119 360 6.280% $293,158
7 09/18/2006 120 120 360 5.990% $210,031
14 09/18/2006 120 120 360 5.990% $110,836
16 05/26/2005 120 104 360 5.200% $109,822
17 07/19/2006 120 118 IO 5.930% $85,175
23 07/27/2006 84 82 300 6.150% $88,223
25 06/26/2006 120 117 360 6.275% $64,682
28 09/15/2006 120 120 360 5.870% $65,034
41 06/28/2006 120 117 360 6.450% $41,417
47 08/18/2006 120 119 360 6.340% $37,068
48 08/14/2006 120 119 360 6.325% $12,393
49 08/14/2006 120 119 360 6.325% $9,235
50 08/14/2006 120 119 360 6.325% $8,871
51 08/14/2006 120 119 360 6.325% $6,242
66 08/10/2006 120 119 360 6.150% $29,878
68 07/20/2006 120 118 360 5.990% $33,539
73 08/08/2006 120 119 300 6.230% $32,922
77 06/15/2006 120 117 360 6.460% $31,409
78 08/01/2006 120 119 IO 6.220% $25,226
79 08/24/2006 120 119 360 6.090% $29,057
82 07/17/2006 120 118 IO 6.080% $23,117
83 08/16/2006 120 119 336 6.460% $24,234
89 08/18/2006 120 119 360 6.340% $23,061
95 08/10/2006 120 119 360 6.300% $21,292
96 08/09/2006 120 119 300 6.330% $26,585
98 08/15/2006 60 59 360 6.625% $24,332
103 07/26/2006 120 119 360 6.120% $16,805
110 09/07/2006 120 120 360 6.500% $18,014
111 07/07/2006 120 118 360 6.300% $17,331
113 06/22/2006 120 117 360 6.490% $15,069
114 08/02/2006 120 119 360 6.340% $17,094
115 07/10/2006 60 58 360 6.545% $17,336
116 08/15/2006 120 119 360 6.300% $16,712
117 07/31/2006 120 118 360 6.270% $16,660
120 07/14/2006 120 118 300 6.340% $17,962
122 05/30/2006 120 116 360 6.310% $16,110
123 09/01/2006 120 120 360 6.420% $15,670
125 08/10/2006 120 119 360 6.300% $12,243
127 08/07/2006 180 179 180 6.150% $19,170
128 06/16/2006 120 117 360 6.360% $13,953
133 07/14/2006 120 118 360 6.350% $10,462
135 08/15/2006 120 119 360 6.060% $11,465
140 08/15/2006 120 119 360 6.780% $9,759
141 05/26/2006 120 116 360 6.400% $9,383
142 08/07/2006 120 119 360 6.390% $7,828
146 06/30/2006 180 177 180 6.610% $12,280
147 08/24/2006 120 119 360 6.378% $8,462
148 08/31/2006 120 119 360 6.170% $6,256
149 06/28/2006 120 117 360 6.670% $7,398
150 08/24/2006 120 119 360 6.378% $6,384
151 08/10/2006 120 119 360 6.410% $5,416
152 08/10/2006 120 119 360 6.400% $5,407
154 08/02/2006 120 119 360 6.455% $6,291
155 09/08/2006 120 120 360 6.765% $5,924
156 08/24/2006 120 119 360 6.378% $5,604
157 08/24/2006 120 119 360 6.378% $4,892
158 07/01/2006 120 118 360 7.040% $5,009
Seasoning DEF DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2% 1% Open YM Formula
-----------------------------------------------------------------------------------------------------------------------------
5 1 93 2
7 0 92 4
14 0 92 4
16 16 76 4
17 2 83 2 F
23 2 56 2
25 3 81 4
28 0 81 4 F
41 3 56 37 F
47 1 81 4 F
48 1 81 4 F
49 1 81 4 F
50 1 81 4 F
51 1 81 4 F
66 1 91 4
68 2 81 35 4 F
73 1 81 4 F
77 3 81 4 F
78 1 83 2 F
79 1 91 4
82 2 81 4
83 1 83 2
89 1 81 4 F
95 1 81 4 F
96 1 81 4 F
98 1 21 4 F
103 1 81 4
110 0 81 4
111 2 81 4
113 3 83 2
114 1 83 2
115 2 21 4
116 1 81 4
117 2 81 4
120 2 81 4
122 4 81 4
123 0 81 4
125 1 81 4 F
127 1 141 4 F
128 3 81 4
133 2 81 4 F
135 1 81 4
140 1 83 2
141 4 81 4
142 1 83 2
146 3 143 2 F
147 1 81 4
148 1 81 4
149 3 81 4
150 1 81 4
151 1 81 4 F
152 1 81 4 F
154 1 81 4 F
155 0 81 4
156 1 81 4
157 1 81 4
158 2 81 4 F
Admin Cost Rate Master Service Fee Rate Primary Service Fee Rate Master Excess Serv. Fee Rate (bps)
---------------------------------------------------------------------------------------------------------------
5 3.165 2.00 1.00 0.00
7 3.165 2.00 1.00 0.00
14 3.165 2.00 1.00 0.00
16 3.165 2.00 1.00 0.00
17 3.165 2.00 1.00 0.00
23 3.165 2.00 1.00 0.00
25 3.165 2.00 1.00 0.00
28 8.165 2.00 6.00 0.00
41 3.165 2.00 1.00 0.00
47 8.165 2.00 6.00 0.00
48 3.165 2.00 1.00 0.00
49 3.165 2.00 1.00 0.00
50 3.165 2.00 1.00 0.00
51 3.165 2.00 1.00 0.00
66 3.165 2.00 1.00 0.00
68 3.165 2.00 1.00 0.00
73 3.165 2.00 1.00 0.00
77 8.165 2.00 6.00 0.00
78 3.165 2.00 1.00 0.00
79 3.165 2.00 1.00 0.00
82 8.165 2.00 6.00 0.00
83 3.165 2.00 1.00 0.00
89 8.165 2.00 6.00 0.00
95 3.165 2.00 1.00 0.00
96 3.165 2.00 1.00 0.00
98 3.165 2.00 1.00 0.00
103 3.165 2.00 1.00 0.00
110 3.165 2.00 1.00 0.00
111 3.165 2.00 1.00 0.00
113 3.165 2.00 1.00 0.00
114 3.165 2.00 1.00 0.00
115 8.165 2.00 6.00 0.00
116 8.165 2.00 6.00 0.00
117 3.165 2.00 1.00 0.00
120 3.165 2.00 1.00 0.00
122 3.165 2.00 1.00 0.00
123 3.165 2.00 1.00 0.00
125 6.165 2.00 1.00 3.00
127 10.165 2.00 1.00 7.00
128 3.165 2.00 1.00 0.00
133 8.165 2.00 6.00 0.00
135 6.165 2.00 1.00 3.00
140 6.165 2.00 1.00 3.00
141 3.165 2.00 1.00 0.00
142 3.165 2.00 1.00 0.00
146 15.165 2.00 1.00 12.00
147 10.165 2.00 1.00 7.00
148 5.165 2.00 1.00 2.00
149 5.165 2.00 1.00 2.00
150 12.165 2.00 1.00 9.00
151 15.165 2.00 1.00 12.00
152 15.165 2.00 1.00 12.00
154 10.165 2.00 1.00 7.00
155 12.165 2.00 6.00 4.00
156 15.165 2.00 1.00 12.00
157 15.165 2.00 1.00 12.00
158 20.165 2.00 6.00 12.00
Primary Excess Servicing Fee Rate (bps) Deal Fees Trustee Fee Rate Other Master Fee
-----------------------------------------------------------------------------------------------
5 0.00 3.00 0.165 0.00
7 0.00 3.00 0.165 0.00
14 0.00 3.00 0.165 0.00
16 0.00 3.00 0.165 0.00
17 0.00 3.00 0.165 0.00
23 0.00 3.00 0.165 0.00
25 0.00 3.00 0.165 0.00
28 0.00 8.00 0.165 0.00
41 0.00 3.00 0.165 0.00
47 0.00 8.00 0.165 0.00
48 0.00 3.00 0.165 0.00
49 0.00 3.00 0.165 0.00
50 0.00 3.00 0.165 0.00
51 0.00 3.00 0.165 0.00
66 0.00 3.00 0.165 0.00
68 0.00 3.00 0.165 0.00
73 0.00 3.00 0.165 0.00
77 0.00 8.00 0.165 0.00
78 0.00 3.00 0.165 0.00
79 0.00 3.00 0.165 0.00
82 0.00 8.00 0.165 0.00
83 0.00 3.00 0.165 0.00
89 0.00 8.00 0.165 0.00
95 0.00 3.00 0.165 0.00
96 0.00 3.00 0.165 0.00
98 0.00 3.00 0.165 0.00
103 0.00 3.00 0.165 0.00
110 0.00 3.00 0.165 0.00
111 0.00 3.00 0.165 0.00
113 0.00 3.00 0.165 0.00
114 0.00 3.00 0.165 0.00
115 0.00 8.00 0.165 0.00
116 0.00 8.00 0.165 0.00
117 0.00 3.00 0.165 0.00
120 0.00 3.00 0.165 0.00
122 0.00 3.00 0.165 0.00
123 0.00 3.00 0.165 0.00
125 0.00 3.00 0.165 0.00
127 0.00 3.00 0.165 0.00
128 0.00 3.00 0.165 0.00
133 0.00 8.00 0.165 0.00
135 0.00 3.00 0.165 0.00
140 0.00 3.00 0.165 0.00
141 0.00 3.00 0.165 0.00
142 0.00 3.00 0.165 0.00
146 0.00 3.00 0.165 0.00
147 0.00 3.00 0.165 0.00
148 0.00 3.00 0.165 0.00
149 0.00 3.00 0.165 0.00
150 0.00 3.00 0.165 0.00
151 0.00 3.00 0.165 0.00
152 0.00 3.00 0.165 0.00
154 0.00 3.00 0.165 0.00
155 0.00 8.00 0.165 0.00
156 0.00 3.00 0.165 0.00
157 0.00 3.00 0.165 0.00
158 0.00 8.00 0.165 0.00
SCHEDULE III
PRINCIPAL II LOAN SCHEDULE
PCFII
Mortgage Loan Seller Loan Number Property Name Cut-Off Date Balance
-------------------------------------------------------------------------------------------------------
20 PCF II 755244 Xxx Xxxxxxxx Center $15,000,000
00 XXX XX 000000 Xxxxxxxxxxx Xxxxxx $12,500,000
26 PCF II 755230 Riverwood Apartments $11,700,000
00 XXX XX 000000 Xxxxxx Xxxxx Apartments $11,200,000
29 PCF II 755118 Lincroft Office Center $10,976,164
30 PCF II 755259 Log Hill Run $10,700,000
31 PCF II 755095 German Hill Shopping Center $10,689,749
33 PCF II 755211 Powers Ferry Landing West $10,000,000
34 PCF II 755221 Burlington Coat Factory Retail Center $10,000,000
36 PCF II 755224 Residence Inn by Marriott $8,970,350
39 PCF II 755323 0000 Xxxxxxxxx Xxxxxx $8,100,000
40 PCF II 755260 000 Xxxxx Xxxx $7,600,000
45 PCF II 755217 000 Xxxxxxx Xxx South $6,993,585
54 PCF II 755210 Xxxxxxxx Industrial Building $6,500,000
00 XXX XX 000000 Xxxxxxx Xxxx Crossing Shopping $6,100,000
67 PCF II 755253 Towne Centre Village Retail Center $5,650,000
71 PCF II 755238 1174-1180 Andover Park West $4,995,365
72 PCF II 755162 000 Xxxx Xxxxxxxx Xxxx $4,995,210
00 XXX XX 000000 Xxxxxxx Xxxxxxx $4,700,000
00 XXX XX 000000 Xxxxx Xxxx Apartments $4,400,000
90 PCF II 755258 5226 Hwy 153 $4,291,284
00 XXX XX 000000 Xxxxxxxxxxxx Xxxxxxxx $4,100,000
94 PCF II 755216 0000 Xxxxx Xxxxxx $4,089,562
97 PCF II 755207 Hampton Inn - Clarksville IN $3,986,582
99 PCF II 755229 Jonesco Business Park $3,400,000
100 PCF II 755147 0000 X. 00xx Xxxxxx $3,396,848
104 PCF II 755234 Oaks Auto Center $3,147,180
105 PCF II 755317 000 Xxxxxxxx Xxxxx $3,100,000
106 PCF II 755261 5102 Calle del Sol $3,000,000
000 XXX XX 000000 Xxxxxxx Xxxxxx Shopping Center $3,000,000
108 PCF II 755164 361 & 000 Xxxx Xxxxxxxx Xxxx $2,997,126
109 PCF II 755257 00-000 Xxxxxxx Xxxxx $2,900,000
000 XXX XX 000000 Xxx Xxxx Xxxxxxx Building $2,300,000
136 PCF II 755208 17271 Xxxxxx Avenue $1,867,034
000 XXX XX 000000 Xxx Xxxxxxx Xxxxxx Apartments $1,646,636
143 PCF II 755314 000 Xxxx Xxxx Xxxxxx $1,438,056
145 PCF II 755173 CVS Drug Store Land Lease $1,394,573
153 PCF II 755139 Xxx Supply $1,000,000
Note Date Original Term to Maturity or ARD Remaining Term Orig. Amort. Rate Monthly Debt Service
-------------------------------------------------------------------------------------------------------------------
20 09/05/2006 120 120 IO 6.100% $77,309
24 08/21/2006 120 119 360 6.240% $65,903
26 08/22/2006 120 119 IO 6.200% $61,290
27 09/05/2006 120 120 420 6.170% $65,145
29 08/08/2006 120 119 240 5.990% $78,744
30 09/06/2006 120 120 360 6.220% $56,232
31 08/10/2006 120 119 360 6.200% $65,534
33 07/26/2006 120 118 IO 6.250% $52,807
34 09/01/2006 120 120 300 6.270% $66,091
36 08/16/2006 180 179 180 6.500% $78,400
39 09/07/2006 120 120 360 6.200% $42,431
40 09/08/2006 120 120 IO 6.280% $40,326
45 08/18/2006 120 119 360 6.430% $43,923
54 07/27/2006 120 118 360 6.300% $34,599
61 09/19/2006 120 120 360 6.240% $37,519
67 09/11/2006 120 120 360 6.520% $35,786
71 07/28/2006 120 119 360 6.370% $31,177
72 08/17/2006 120 119 360 6.200% $30,623
81 08/04/2006 120 119 360 6.290% $24,978
84 08/14/2006 120 119 IO 6.370% $23,681
90 08/31/2006 240 239 240 6.550% $32,186
93 09/08/2006 120 120 360 6.260% $21,685
94 07/26/2006 120 118 300 6.390% $27,402
97 08/08/2006 180 179 180 6.290% $34,384
99 08/07/2006 120 119 360 6.430% $18,471
100 08/01/2006 120 119 360 6.370% $21,200
104 08/18/2006 120 119 360 6.550% $20,014
105 09/15/2006 120 120 360 6.270% $19,128
106 08/29/2006 120 120 360 6.420% $16,273
107 08/17/2006 120 119 360 6.390% $16,197
108 08/17/2006 120 119 360 6.200% $18,374
109 08/23/2006 120 119 336 6.480% $15,878
124 09/07/2006 120 120 360 6.500% $14,538
136 07/18/2006 120 118 360 6.620% $11,968
138 08/16/2006 240 239 240 6.500% $12,302
143 08/15/2006 120 119 300 6.430% $9,660
145 07/21/2006 240 238 240 6.560% $10,488
153 09/01/2006 120 120 360 6.690% $6,446
Seasoning DEF DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2% 1% Open YM Formula
-----------------------------------------------------------------------------------------------------------------------------
20 0 92 4 G
24 1 93 2
26 1 93 2
27 0 93 3 G
29 1 91 4
30 0 93 3
31 1 91 25 4 G
33 2 92 2
34 0 93 3
36 1 151 4
39 0 118 2 G
40 0 94 2
45 1 93 2
54 2 116 4 G
61 0 94 2
67 0 118 2 G
71 1 93 2
72 1 93 2 G
81 1 93 2
84 1 93 2 M
90 1 190 2 G
93 0 92 4 G
94 2 92 2 M
97 1 153 2
99 1 93 2 M
100 1 92 3 M
104 1 93 2 M
105 0 94 2 M
106 0 94 2 G
107 1 93 2 M
108 1 93 2 G
109 1 93 2 G
124 0 94 2
136 2 92 2 M
138 1 213 2 M
143 1 93 2
145 2 212 2 M
153 0 94 2 M
Admin Cost Rate Master Service Fee Rate Primary Service Fee Rate Master Excess Serv. Fee Rate (bps)
---------------------------------------------------------------------------------------------------------------
20 3.165 2.00 1.00 0.00
24 3.165 2.00 1.00 0.00
26 3.165 2.00 1.00 0.00
27 3.165 2.00 1.00 0.00
29 3.165 2.00 1.00 0.00
30 3.165 2.00 1.00 0.00
31 3.165 2.00 1.00 0.00
33 3.165 2.00 1.00 0.00
34 3.165 2.00 1.00 0.00
36 3.165 2.00 1.00 0.00
39 3.165 2.00 1.00 0.00
40 3.165 2.00 1.00 0.00
45 3.165 2.00 1.00 0.00
54 3.165 2.00 1.00 0.00
61 3.165 2.00 1.00 0.00
67 3.165 2.00 1.00 0.00
71 3.165 2.00 1.00 0.00
72 3.165 2.00 1.00 0.00
81 3.165 2.00 1.00 0.00
84 3.165 2.00 1.00 0.00
90 3.165 2.00 1.00 0.00
93 3.165 2.00 1.00 0.00
94 3.165 2.00 1.00 0.00
97 3.165 2.00 1.00 0.00
99 3.165 2.00 1.00 0.00
100 3.165 2.00 1.00 0.00
104 3.165 2.00 1.00 0.00
105 3.165 2.00 1.00 0.00
106 3.165 2.00 1.00 0.00
107 3.165 2.00 1.00 0.00
108 3.165 2.00 1.00 0.00
109 3.165 2.00 1.00 0.00
124 3.165 2.00 1.00 0.00
136 3.165 2.00 1.00 0.00
138 3.165 2.00 1.00 0.00
143 3.165 2.00 1.00 0.00
145 3.165 2.00 1.00 0.00
153 3.165 2.00 1.00 0.00
Primary Excess Servicing Fee Rate (bps) Deal Fees Trustee Fee Rate Other Master Fee
-----------------------------------------------------------------------------------------------
20 0.00 3.00 0.165 0.00
24 0.00 3.00 0.165 0.00
26 0.00 3.00 0.165 0.00
27 0.00 3.00 0.165 0.00
29 0.00 3.00 0.165 0.00
30 0.00 3.00 0.165 0.00
31 0.00 3.00 0.165 0.00
33 0.00 3.00 0.165 0.00
34 0.00 3.00 0.165 0.00
36 0.00 3.00 0.165 0.00
39 0.00 3.00 0.165 0.00
40 0.00 3.00 0.165 0.00
45 0.00 3.00 0.165 0.00
54 0.00 3.00 0.165 0.00
61 0.00 3.00 0.165 0.00
67 0.00 3.00 0.165 0.00
71 0.00 3.00 0.165 0.00
72 0.00 3.00 0.165 0.00
81 0.00 3.00 0.165 0.00
84 0.00 3.00 0.165 0.00
90 0.00 3.00 0.165 0.00
93 0.00 3.00 0.165 0.00
94 0.00 3.00 0.165 0.00
97 0.00 3.00 0.165 0.00
99 0.00 3.00 0.165 0.00
100 0.00 3.00 0.165 0.00
104 0.00 3.00 0.165 0.00
105 0.00 3.00 0.165 0.00
106 0.00 3.00 0.165 0.00
107 0.00 3.00 0.165 0.00
108 0.00 3.00 0.165 0.00
109 0.00 3.00 0.165 0.00
124 0.00 3.00 0.165 0.00
136 0.00 3.00 0.165 0.00
138 0.00 3.00 0.165 0.00
143 0.00 3.00 0.165 0.00
145 0.00 3.00 0.165 0.00
153 0.00 3.00 0.165 0.00
SCHEDULE IV
XXXXXX XXXXXXX MORTGAGE CAPITAL LOAN SCHEDULE
MSMC
Mortgage Loan Seller Loan Number Property Name
-----------------------------------------------------------------------------------------------
1 MSMC LL1 US Xxxxxxx Xxxxx
0 XXXX 00-00000 000 Xxxxx Xxxxx Xxxxxx
6 MSMC 06-27339 Potomac Place Shopping Center
13 MSMC 06-27089 Sheraton Four Points - X'Xxxx Airport
15 MSMC 06-26499 Boscovs
21 MSMC 05-19982 000 Xxxxx Xxxxxx
00 XXXX 00-00000 000 Xxxx 00xx Xxxxxx Coop
38 MSMC 06-26998 The Xxxxx Building
42 MSMC 06-25179 Gateway Village Phase III
44 MSMC 06-24452 000 Xxxx Xxxxxx Xxxx
46 MSMC 05-23646 Trail Creek Crossing
52 MSMC 06-26541 Abingdon Court Townhomes
53 MSMC 06-25759 South Lake Center
55 MSMC 06-25439 Mission Plaza
56 MSMC 06-25993 Liberty II
57 MSMC 06-25802 Old Lyme Marketplace
58 MSMC 06-25472 Washington Mutual Bank - Xxxxxx
59 MSMC 06-25823 Xxxxxx Loft / Xxxxxx
00 XXXX 00-00000 Xxxxx Xxxxxx
00 XXXX 00-00000 Xxxxxx Xxxxx Xxx Xxxxxx (XX)
63 MSMC 06-26483 Cheese Works California (II)
65 MSMC 06-24473 Holiday Inn Presidential - Little Rock
69 MSMC 06-25841 Altmonte Apartments
74 MSMC 06-25364 Brooklyn Retail Portfolio - 000-000 0xx Xxxxxx (XXX)
75 MSMC 06-25950 Brooklyn Retail Portfolio - 000 0xx Xxxxxx (XXX)
76 MSMC 06-25551 Kona International
80 MSMC 06-25035 West Market Center
85 MSMC 06-26458 Yosemite Crossings
86 MSMC 05-22613 Fairview Milwaukee Retail Center
87 MSMC 06-25783 Bristol House Coop
88 MSMC 06-25747 Vista Village Mobile Home Park
91 MSMC 06-26226 Comfort Inn - Fort Xxxxx
101 MSMC 00-00000 Xxxxxx Xxxxxx
102 MSMC 06-25748 Xxxxxxxxx Villa Mobile Home Park
112 MSMC 06-25513 CVS - PCH
126 MSMC 06-24645 Dunnellon Retail
129 MSMC 06-26319 Social Security Building
130 MSMC 05-23502 The Strand Lofts
132 MSMC 06-26156 Border Patrol Station Building
134 MSMC 06-25580 Tractor Supply - Xxxxx Xxxxx Xxxxxx
000 XXXX 00-00000 Xxxxxxxxx Apartments
139 MSMC 06-26405 Stassney Center
144 MSMC 06-25495 Woodcreek Village Apartments
Cut-Off Date Balance Note Date Original Term to Maturity or ARD Remaining Term Orig. Amort. Rate
-------------------------------------------------------------------------------------------------------------------
1 $186,550,000 08/03/2006 120 118 IO 6.131%
2 $152,500,000 08/16/2006 60 59 IO 5.860%
6 $44,000,000 09/29/2006 120 120 IO 5.940%
13 $22,500,000 09/12/2006 60 60 IO 5.910%
15 $20,414,000 09/15/2006 120 120 360 6.200%
21 $15,000,000 06/29/2006 180 177 IO 5.530%
37 $8,250,000 07/25/2006 120 118 IO 5.870%
38 $8,245,595 07/26/2006 120 118 360 6.210%
42 $7,580,000 06/27/2006 120 117 360 6.100%
44 $7,500,000 09/29/2006 120 120 360 5.540%
46 $6,961,871 06/09/2006 120 117 360 6.110%
52 $6,787,979 07/26/2006 60 58 360 6.150%
53 $6,700,000 06/07/2006 120 117 IO 5.910%
55 $6,493,640 09/01/2006 120 119 360 6.090%
56 $6,425,000 06/30/2006 120 117 360 6.160%
57 $6,388,635 07/20/2006 120 118 360 6.130%
58 $6,300,000 06/29/2006 120 117 360 6.050%
59 $6,294,011 08/09/2006 120 119 360 6.240%
60 $6,193,875 08/24/2006 120 119 360 6.040%
62 $3,681,540 07/05/2006 120 118 360 6.540%
63 $2,308,762 07/05/2006 120 118 360 6.540%
65 $5,777,948 06/01/2006 120 117 300 6.300%
69 $5,290,673 07/20/2006 120 118 360 6.170%
74 $3,693,577 07/26/2006 120 118 360 6.230%
75 $1,297,743 07/26/2006 120 118 360 6.230%
76 $4,987,158 07/03/2006 120 118 300 6.340%
80 $4,788,461 06/29/2006 120 117 360 6.430%
85 $4,400,000 07/07/2006 120 118 360 6.080%
86 $4,400,000 06/26/2006 120 117 360 5.870%
87 $4,392,116 07/26/2006 120 118 360 6.090%
88 $4,355,701 08/30/2006 120 119 360 6.050%
91 $4,239,409 07/24/2006 120 118 300 6.510%
101 $3,300,000 06/23/2006 120 117 360 6.070%
102 $3,296,808 08/30/2006 120 119 360 6.150%
112 $2,794,949 07/10/2006 120 118 360 6.060%
126 $2,294,375 06/19/2006 120 117 360 6.360%
129 $2,225,000 07/18/2006 120 118 360 6.120%
130 $2,200,000 06/15/2006 60 57 360 6.290%
132 $2,191,102 07/20/2006 120 118 360 6.130%
134 $1,900,000 07/24/2006 120 118 360 6.410%
137 $1,675,831 06/21/2006 120 117 360 6.300%
139 $1,597,210 07/06/2006 120 118 360 6.210%
144 $1,396,373 06/01/2006 120 117 360 6.120%
Monthly Debt Service Seasoning DEF DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2% 1%
---------------------------------------------------------------------------------------------------------------------------------
1 $966,353 2 87
2 $755,052 1 31
6 $220,825 0 92
13 $112,352 0 32
15 $106,937 0 92
21 $70,085 3 149
37 $40,917 2 90
38 $50,644 2 91
42 $39,067 3 89
44 $42,773 0 92
46 $42,344 3 89
52 $41,428 2 30
53 $33,456 3 89
55 $39,348 1 91
56 $33,440 3 89
57 $38,908 2 90
58 $32,204 3 93
59 $38,749 1 91
60 $37,332 1 91
62 $23,405 2 90
63 $14,677 2 90
65 $38,440 3 89
69 $32,358 2 90
74 $22,733 2 90
75 $7,987 2 90
76 $33,262 2 90
80 $30,119 3 105
85 $22,603 2 89
86 $21,822 3 89
87 $26,635 2 90
88 $26,281 1 88
91 $28,723 2 87
101 $16,924 3 89
102 $20,105 1 88
112 $16,896 2 90
126 $14,326 3 89
129 $11,505 2 90
130 $11,692 3 29
132 $13,344 2 90
134 $10,290 2 90
137 $10,399 3 89
139 $9,810 2 90
144 $8,502 3 89
Open YM Formula Admin Cost Rate Master Service Fee Rate Primary Service Fee Rate Master Excess Serv. Fee Rate (bps)
-----------------------------------------------------------------------------------------------------------------------------------
1 7 A 2.165 1.00 1.00 0.00
2 4 B 2.165 1.00 1.00 0.00
6 4 D 2.165 1.00 1.00 0.00
13 4 2.165 1.00 1.00 0.00
15 4 2.165 1.00 1.00 0.00
21 4 2.165 1.00 1.00 0.00
37 4 H 2.165 1.00 1.00 0.00
38 3 2.165 1.00 1.00 0.00
42 4 I 2.165 1.00 1.00 0.00
44 4 2.165 1.00 1.00 0.00
46 4 2.165 1.00 1.00 0.00
52 4 2.165 1.00 1.00 0.00
53 4 2.165 1.00 1.00 0.00
55 4 2.165 1.00 1.00 0.00
56 4 7.165 1.00 5.00 1.00
57 4 2.165 1.00 1.00 0.00
58 4 J 2.165 1.00 1.00 0.00
59 4 K 2.165 1.00 1.00 0.00
60 4 2.165 1.00 1.00 0.00
62 4 2.165 1.00 1.00 0.00
63 4 2.165 1.00 1.00 0.00
65 4 2.165 1.00 1.00 0.00
69 4 2.165 1.00 1.00 0.00
74 4 2.165 1.00 1.00 0.00
75 4 2.165 1.00 1.00 0.00
76 4 12.165 1.00 10.00 1.00
80 4 L 12.165 1.00 10.00 1.00
85 5 2.165 1.00 1.00 0.00
86 4 2.165 1.00 1.00 0.00
87 4 H 2.165 1.00 1.00 0.00
88 7 2.165 1.00 1.00 0.00
91 7 2.165 1.00 1.00 0.00
101 4 K 2.165 1.00 1.00 0.00
102 7 2.165 1.00 1.00 0.00
112 4 2.165 1.00 1.00 0.00
126 4 2.165 1.00 1.00 0.00
129 4 2.165 1.00 1.00 0.00
130 4 K 2.165 1.00 1.00 0.00
132 4 2.165 1.00 1.00 0.00
134 4 2.165 1.00 1.00 0.00
137 4 2.165 1.00 1.00 0.00
139 4 2.165 1.00 1.00 0.00
144 4 2.165 1.00 1.00 0.00
Primary Excess Servicing Fee Rate (bps) Deal Fees Trustee Fee Rate Other Master Fee
-----------------------------------------------------------------------------------------------
1 0.00 2.00 0.165 0.00
2 0.00 2.00 0.165 0.00
6 0.00 2.00 0.165 0.00
13 0.00 2.00 0.165 0.00
15 0.00 2.00 0.165 0.00
21 0.00 2.00 0.165 0.00
37 0.00 2.00 0.165 0.00
38 0.00 2.00 0.165 0.00
42 0.00 2.00 0.165 0.00
44 0.00 2.00 0.165 0.00
46 0.00 2.00 0.165 0.00
52 0.00 2.00 0.165 0.00
53 0.00 2.00 0.165 0.00
55 0.00 2.00 0.165 0.00
56 0.00 6.00 0.165 0.00
57 0.00 2.00 0.165 0.00
58 0.00 2.00 0.165 0.00
59 0.00 2.00 0.165 0.00
60 0.00 2.00 0.165 0.00
62 0.00 2.00 0.165 0.00
63 0.00 2.00 0.165 0.00
65 0.00 2.00 0.165 0.00
69 0.00 2.00 0.165 0.00
74 0.00 2.00 0.165 0.00
75 0.00 2.00 0.165 0.00
76 0.00 11.00 0.165 0.00
80 0.00 11.00 0.165 0.00
85 0.00 2.00 0.165 0.00
86 0.00 2.00 0.165 0.00
87 0.00 2.00 0.165 0.00
88 0.00 2.00 0.165 0.00
91 0.00 2.00 0.165 0.00
101 0.00 2.00 0.165 0.00
102 0.00 2.00 0.165 0.00
112 0.00 2.00 0.165 0.00
126 0.00 2.00 0.165 0.00
129 0.00 2.00 0.165 0.00
130 0.00 2.00 0.165 0.00
132 0.00 2.00 0.165 0.00
134 0.00 2.00 0.165 0.00
137 0.00 2.00 0.165 0.00
139 0.00 2.00 0.165 0.00
144 0.00 2.00 0.165 0.00
SCHEDULE V
[Reserved]
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
Principal II - None
MSMC - None
BSCMI - None
XXXXX - None
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
MSMC
-----------------------------------------------------------------------------
Mortgage Original Current
Loan No. Seller Property Name Type Balance Balance
-----------------------------------------------------------------------------
00 XXXX Xxxxx Xxxxx Xxxxxxxx Other Escrow $163,440 $163,440
59 MSMC Xxxxxx Loft / Office Other Escrow $100,000 $100,000
00 XXXX Xxxxx Sonora Other Escrow $56,000 $56,000
Fairview Milwaukee Retail
86 MSMC Center Other Escrow $239,200 $239,200
000 XXXX Xxxxxx Xxxxxx Other Escrow $330,000 $330,000
000 XXXX Xxxxxxxx Xxxxxx Other Escrow $74,690 $74,690
BSCMSI
----------------------------------------------------------------
Mortgage BSCMI Loan
Loan No. Number PROPERTY NAME Escrow Amount ($)
----------------------------------------------------------------
70 46383 ROCKY HILL $189,256
92 48603 199 & 000 Xxx Xxxxxx $75,000
Principal II
755180 - $600,000
755208 - $101,150
755210 - $120,000
755259 - $656,250
XXXXX
SCHEDULE VII -
UPFRONT RESERVES,
IN EXCESS OF
$75,000, FOR:
- SPECIFIC
IMMEDIATE
ENGINEERING WORK
- COMPLETION OF
ADDITIONAL
CONSTRUCTION
- ENVIRONMENTAL
Tab REMEDIATON OT SCHEDULE VII - UPFRONT
Loan Number No. Property Name SIMILAR PROJECTS RESERVES COMMENTS
------------------------------------------------------------------------------------------------------------------
510904729 Hilton Tapatio
An escrow reserve impound will
be required in the amount of
$623,299 (125% of $498,639)
for short-term capital
expenditures as estimated in
310904835 Xxxxxxx Station Shopping Center $623,299.00 the engineering report.
310904834 Xxxxxxx Xxxxxxx Xxxxx
000000000 Xxxxx Xxxxxx Xxxxxxxx
310904548 The Southlands
310904576 NetScout
310904530 Mesa South Center
610904274 City National Bank Building
310904384 Eagle Marketplace
610904639 The Offices at Sweetwater
P & R Properties Portfolio - Clinton
310904609A Corners Retail
P & R Properties Portfolio - Countryside
310904609B Plaza
P & R Properties Portfolio - Canterbury
310904609C Office
P & R Properties Portfolio - Willow Wood
310904609D Office
310904403 000 Xxxxxxxx Xxxxx
310904467 12885-12893 Alcosta Boulevard
310904541 North Canyons Office Park
620904429 Bryman College Phoenix
410904668 College Square III
310903634 Red Mountain SS
620904585 Royal Freeport Business Center
310904507 Hilltop Commons
610904640 Westland Tech Center
410904689 Springfield Manor MHP
310904542 In-Shape Health Club
410904617 Xxxxxxxxxx Plaza Two A reserve of $119,219 was
410904421 0000 Xxxx 000xx Xxxxxx $119,219.00 taken at funding which represents
125% of estimated
costs for repair of the
parking area and concrete that
are expenses anticipated in
the first 2 years of the loan
term.
410904685 The Plaza at Royal Oaks
410904566 RitePlace Storage
410904500 Tractor Supply - Harrisburg, PA
410904545 Woodland Harvest Square
620904502 Parkside Cintas
620904350 Lock it Lockers
410904537 Lapeer Shopping Center
410904396 Central Plaza (Poulsbo)
A holdback of $132,500 (125%
of $106,000: first three years
of recommended capital
improvements) was taken at
loan funding. Borrower shall
complete the short term
capital improvements within 6
months of the disbursement
410904302 Highlander Apartments $132,500.00 date (November 30, 2006).
410904405 Safeway Sahuarita Retail Center
410904687 Ridgewood & Sunrise MHP
410904554 000 Xxxxxxxxx Xxxx
410904107 Maple Plain Apartments
620904567 Home Depot Shops
410904769 Walgreen's - Oregon
410903984 Midlothian 7-11
410904377 0000 XX Xxxxxxxxx Xxxxxxx
410904535 Xxxxxxxx Xxxxxxxx Xxxx
000000000 Xxxxxxx Xxxxxxxxxx Xxxx
410904578 0000 Xxxx Xxxxxxxx Xxxxxx Retail
310904385 Evergreen Villa MHC
410904495 Verizon Wireless Retail Store
410904579 0000 Xxxx Xxxxxxxx Xxxxxx Retail
410904688 Cumberland MHP
410904704 Xxxxxx Xxxxxxx XXX
000000000 0000 Xxxxxx Xxxxx
620904664 949 Grand - St. Xxxx
410904581 0000 Xxxx Xxxxxxxx Xxxxxx Retail
410904580 6430- 0000 Xxxx Xxxxxxxx Xxxxxx Retail
620904066 0000-0000 Xxxx Xxxxx Xxxxxx and 000-000
Xxxxx Xxxxxx Xxxxxx
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(a)
MSMC None
Principal II None
BSCMI None
XXXXX None
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 Rates
------------ --------
11/12/2006 6.16367%
12/12/2006 5.98304%
1/12/2007 5.98299%
2/12/2007 5.98295%
3/12/2007 5.98307%
4/12/2007 6.16340%
5/12/2007 5.98279%
6/12/2007 6.16329%
7/12/2007 5.98269%
8/12/2007 6.16318%
9/12/2007 6.16313%
10/12/2007 5.98255%
11/12/2007 6.16302%
12/12/2007 5.98245%
1/12/2008 6.16290%
2/12/2008 5.98234%
3/12/2008 5.98235%
4/12/2008 6.16272%
5/12/2008 5.98218%
6/12/2008 6.16260%
7/12/2008 5.98207%
8/12/2008 6.16248%
9/12/2008 6.16242%
10/12/2008 5.98190%
11/12/2008 6.16227%
12/12/2008 5.98177%
1/12/2009 5.98170%
2/12/2009 5.98164%
3/12/2009 5.98183%
4/12/2009 6.16188%
5/12/2009 5.98142%
6/12/2009 6.16173%
7/12/2009 5.98129%
8/12/2009 6.16157%
9/12/2009 6.16150%
10/12/2009 5.98108%
11/12/2009 6.16133%
12/12/2009 5.98093%
1/12/2010 5.98085%
Distribution
Date Rates
------------ --------
2/12/2010 5.98078%
3/12/2010 5.98103%
4/12/2010 6.16088%
5/12/2010 5.98053%
6/12/2010 6.16070%
7/12/2010 5.98038%
8/12/2010 6.16052%
9/12/2010 6.16043%
10/12/2010 5.98014%
11/12/2010 6.16024%
12/12/2010 5.97998%
1/12/2011 5.97989%
2/12/2011 5.97981%
3/12/2011 5.98008%
4/12/2011 6.15975%
5/12/2011 5.97918%
6/12/2011 6.15768%
7/12/2011 5.97937%
8/12/2011 6.15895%
9/12/2011 6.15739%
10/12/2011 5.99531%
11/12/2011 6.17529%
12/12/2011 5.99750%
1/12/2012 6.17507%
2/12/2012 5.99732%
3/12/2012 5.99739%
4/12/2012 6.17475%
5/12/2012 5.99705%
6/12/2012 6.17452%
7/12/2012 5.99686%
8/12/2012 6.17429%
9/12/2012 6.17418%
10/12/2012 5.99657%
11/12/2012 6.17394%
12/12/2012 5.99637%
1/12/2013 5.99626%
2/12/2013 5.99617%
3/12/2013 5.99658%
4/12/2013 6.17331%
5/12/2013 5.99584%
6/12/2013 6.17306%
7/12/2013 5.99563%
8/12/2013 6.18456%
9/12/2013 6.20219%
Distribution
Date Rates
------------ --------
10/12/2013 6.04587%
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
Group 1
----------------------------------------
Mortgage BSCMI Loan
Loan Nos. Number PROPERTY NAME
----------------------------------------
118 46937a 000 XXXX XXXXXX
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE END OF A
COLLECTION PERIOD
Mortgage Seller
Loan No. Loan Number Property Name Due Date
-------------------------------------------------------------------------
2 06-26991 000 Xxxxx Xxxxx Xxxxxx 9th
52 06-26541 Abingdon Court Townhomes 8th
58 06-25472 Washington Mutual Bank - Xxxxxx 8th
13 06-27089 Sheraton Four Points - X'Xxxx Airport 7th
38 06-26998 The Xxxxx Building 7th
SCHEDULE XII
LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT WHOSE SERVICING
FEES ACCRUE ON A 30/360 BASIS
None
SCHEDULE XIII
CLASS A-AB PLANNED PRINCIPAL BALANCE
Distribution
Date Balance
------------ -----------
11/12/2006 $81,000,000
12/12/2006 $81,000,000
1/12/2007 $81,000,000
2/12/2007 $81,000,000
3/12/2007 $81,000,000
4/12/2007 $81,000,000
5/12/2007 $81,000,000
6/12/2007 $81,000,000
7/12/2007 $81,000,000
8/12/2007 $81,000,000
9/12/2007 $81,000,000
10/12/2007 $81,000,000
11/12/2007 $81,000,000
12/12/2007 $81,000,000
1/12/2008 $81,000,000
2/12/2008 $81,000,000
3/12/2008 $81,000,000
4/12/2008 $81,000,000
5/12/2008 $81,000,000
6/12/2008 $81,000,000
7/12/2008 $81,000,000
8/12/2008 $81,000,000
9/12/2008 $81,000,000
10/12/2008 $81,000,000
11/12/2008 $81,000,000
12/12/2008 $81,000,000
1/12/2009 $81,000,000
2/12/2009 $81,000,000
3/12/2009 $81,000,000
4/12/2009 $81,000,000
5/12/2009 $81,000,000
6/12/2009 $81,000,000
7/12/2009 $81,000,000
8/12/2009 $81,000,000
9/12/2009 $81,000,000
10/12/2009 $81,000,000
11/12/2009 $81,000,000
12/12/2009 $81,000,000
1/12/2010 $81,000,000
2/12/2010 $81,000,000
Distribution
Date Balance
------------ -----------
3/12/2010 $81,000,000
4/12/2010 $81,000,000
5/12/2010 $81,000,000
6/12/2010 $81,000,000
7/12/2010 $81,000,000
8/12/2010 $81,000,000
9/12/2010 $81,000,000
10/12/2010 $81,000,000
11/12/2010 $81,000,000
12/12/2010 $81,000,000
1/12/2011 $81,000,000
2/12/2011 $81,000,000
3/12/2011 $81,000,000
4/12/2011 $81,000,000
5/12/2011 $81,000,000
6/12/2011 $81,000,000
7/12/2011 $81,000,000
8/12/2011 $81,000,000
9/12/2011 $81,000,000
10/12/2011 $80,996,100
11/12/2011 $80,055,000
12/12/2011 $78,991,000
1/12/2012 $78,040,000
2/12/2012 $77,084,000
3/12/2012 $75,886,000
4/12/2012 $74,918,000
5/12/2012 $73,764,000
6/12/2012 $72,734,000
7/12/2012 $71,569,000
8/12/2012 $70,526,000
9/12/2012 $69,479,000
10/12/2012 $68,292,000
11/12/2012 $67,229,000
12/12/2012 $66,031,000
1/12/2013 $64,956,000
2/12/2013 $63,875,000
3/12/2013 $62,403,000
4/12/2013 $61,308,000
5/12/2013 $60,080,000
6/12/2013 $58,973,000
7/12/2013 $57,800,000
8/12/2013 $56,700,000
9/12/2013 $55,608,000
10/12/2013 $54,377,000
Distribution
Date Balance
------------ -----------
11/12/2013 $53,266,000
12/12/2013 $52,025,000
1/12/2014 $50,901,000
2/12/2014 $49,772,000
3/12/2014 $48,264,000
4/12/2014 $47,121,000
5/12/2014 $45,848,000
6/12/2014 $44,691,000
7/12/2014 $43,406,000
8/12/2014 $42,237,000
9/12/2014 $41,061,000
10/12/2014 $39,757,000
11/12/2014 $38,568,000
12/12/2014 $37,251,000
1/12/2015 $36,049,000
2/12/2015 $34,840,000
3/12/2015 $33,261,000
4/12/2015 $32,038,000
5/12/2015 $30,687,000
6/12/2015 $12,901,000
7/12/2015 $11,575,000
8/12/2015 $10,360,000
9/12/2015 $9,139,000
10/12/2015 $7,793,000
11/12/2015 $6,558,000
12/12/2015 $5,199,000
1/12/2016 $3,950,000
2/12/2016 $2,695,000
3/12/2016 $1,200,000
4/12/2016 $0
SCHEDULE XIV
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria":
-------------------------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Paying Agent
Master Servicer
Policies and procedures are instituted to monitor any performance or other Special Servicer
1122(d)(1)(i) triggers and events of default in accordance with the transaction agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Paying Agent
If any material servicing activities are outsourced to third parties, Master Servicer
policies and procedures are instituted to monitor the third party's Special Servicer
1122(d)(1)(ii) performance and compliance with such servicing activities. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain a back-up servicer N/A
1122(d)(1)(iii) for the mortgage loans are maintained.
-------------------------------------------------------------------------------------------------------------------
Paying Agent
A fidelity bond and errors and omissions policy is in effect on the party Trustee
participating in the servicing function throughout the reporting period in Master Servicer
the amount of coverage required by and otherwise in accordance with the terms Special Servicer
1122(d)(1)(iv) of the transaction agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
-------------------------------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the appropriate custodial bank Paying Agent
accounts and related bank clearing accounts no more than two business days Master Servicer
following receipt, or such other number of days specified in the transaction Special Servicer
1122(d)(2)(i) agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or to an Paying Agent
1122(d)(2)(ii) investor are made only by authorized personnel.
-------------------------------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections, cash flows or Master Servicer
distributions, and any interest or other fees charged for such advances, are Special Servicer
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements. Trustee
-------------------------------------------------------------------------------------------------------------------
The related accounts for the transaction, such as cash reserve accounts or Paying Agent
accounts established as a form of overcollateralization, are separately Master Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Special Servicer
1122(d)(2)(iv) transaction agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this Paying Agent
criterion, "federally insured depository institution" with respect to a Master Servicer
foreign financial institution means a foreign financial institution that Special Servicer
1122(d)(2)(v) meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Master Servicer
1122(d)(2)(vi) Special Servicer
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
Paying Agent
Unissued checks are safeguarded so as to prevent unauthorized access. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Reconciliations are prepared on a monthly basis for all asset-backed Paying Agent
securities related bank accounts, including custodial accounts and related Master Servicer
bank clearing accounts. These reconciliations are (A) mathematically Special Servicer
accurate; (B) prepared within 30 calendar days after the bank statement Primary Servicer
cutoff date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
1122(d)(2)(vii) transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------------------------------------------------------------------------------------------------------
Reports to investors, including those to be filed with the Commission, are Paying Agent
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
1122(d)(3)(i) mortgage loans serviced by the Servicer.
-------------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in accordance with Paying Agent
timeframes, distribution priority and other terms set forth in the
1122(d)(3)(ii) transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business days to the Paying Agent
Servicer's investor records, or such other number of days specified in the
1122(d)(3)(iii) transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports agree with cancelled Paying Agent
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
-------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-------------------------------------------------------------------------------------------------------------------
Trustee
Master Servicer
Collateral or security on mortgage loans is maintained as required by the Special Servicer
1122(d)(4)(i) transaction agreements or related mortgage loan documents. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by the Trustee
1122(d)(4)(ii) transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Trustee
Any additions, removals or substitutions to the asset pool are made, reviewed Master Servicer
and approved in accordance with any conditions or requirements in the Special Servicer
1122(d)(4)(iii) transaction agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Payments on mortgage loans, including any payoffs, made in accordance with Master Servicer
the related mortgage loan documents are posted to the Servicer's obligor Special Servicer
records maintained no more than two business days after receipt, or such Primary Servicer
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
1122(d)(4)(iv) related mortgage loan documents.
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
1122(d)(4)(v) records with respect to an obligor's unpaid principal balance. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Changes with respect to the terms or status of an obligor's mortgage loans Master Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Special Servicer
authorized personnel in accordance with the transaction agreements and Primary Servicer
1122(d)(4)(vi) related pool asset documents.
-------------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications Master Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as Special Servicer
applicable) are initiated, conducted and concluded in accordance with the
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained during the period a Master Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Special Servicer
Such records are maintained on at least a monthly basis, or such other period Primary Servicer
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
-------------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor (such as escrow accounts): Master Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan Primary Servicer
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
1122(d)(4)(x) specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are Master Servicer
made on or before the related penalty or expiration dates, as indicated on Primary Servicer
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
1122(d)(4)(xi) agreements.
-------------------------------------------------------------------------------------------------------------------
Any late payment penalties in connection with any payment to be made on Master Servicer
behalf of an obligor are paid from the servicer's funds and not charged to Primary Servicer
the obligor, unless the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
-------------------------------------------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are posted within two business Master Servicer
days to the obligor's records maintained by the servicer, or such other Primary Servicer
1122(d)(4)(xiii) number of days specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
1122(d)(4)(xiv) recorded in accordance with the transaction agreements. Primary Servicer
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
Applicable
Relevant Servicing Criteria Party(ies)
-------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item 1114(a)(1) N/A
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
1122(d)(4)(xv) the transaction agreements.
-------------------------------------------------------------------------------------------------------------------
SCHEDULE XV
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.4 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-D Item described in the "Item on Form 10-D" column to the extent such
party has knowledge (and in the case of financial statements required to be
provided in connection with Item 6 below, possession) of such information (other
than information as to itself). Each of the Paying Agent, the Trustee, the
Master Servicer, the Primary Servicer and the Special Servicer (in its capacity
as such) shall be entitled to rely on the accuracy of the Prospectus Supplement
(other than information with respect to itself that is set forth in or omitted
from the Prospectus Supplement), in the absence of specific notice to the
contrary from the Depositor or Seller. Each of the Paying Agent, the Trustee,
the Master Servicer, the Primary Servicer and the Special Servicer (in its
capacity as such) shall be entitled to conclusively assume that there is no
"significant obligor" other than a party identified as such in the Prospectus
Supplement. For this Series 2006-TOP24 Pooling and Servicing Agreement, each of
the Paying Agent, the Trustee, the Master Servicer, the Primary Servicer and the
Special Servicer (in its capacity as such) shall be entitled to assume that
there is no provider of credit enhancement, liquidity or derivative instruments
within the meaning of Items 1114 or 1115 of Regulation AB other than a party
identified as such in the Prospectus Supplement.
-----------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-----------------------------------------------------------------------------------------------------------------
Item 1A: Distribution and Pool Performance Information: o Master Servicer
o Item 1121(a)(13) of Regulation AB o Paying Agent/Trustee
-----------------------------------------------------------------------------------------------------------------
Item 1B: Distribution and Pool Performance Information: o Paying Agent/Trustee
o Item 1121 (a)(14) of Regulation AB o Depositor
-----------------------------------------------------------------------------------------------------------------
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation AB o Special Servicer (as to itself)
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
o Each Seller as sponsor (as defined in Regulation AB)
o Originators under Item 1110 of Regulation
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
-----------------------------------------------------------------------------------------------------------------
AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
-----------------------------------------------------------------------------------------------------------------
o Paying Agent
Item 4: Defaults Upon Senior Securities o Trustee
-----------------------------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security o Paying Agent
Holders o Trustee
-----------------------------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets o Depositor
o Sponsor
o Applicable Seller
o Master Servicer
o Primary Servicer (as to loans serviced by it)
-----------------------------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Information o Depositor
-----------------------------------------------------------------------------------------------------------------
Item 8: Other Information o Paying Agent
o Any other party responsible for disclosure items on
Form 8-K
-----------------------------------------------------------------------------------------------------------------
Item 9: Exhibits o Paying Agent
o Depositor
o Master Servicer
o Special Servicer
o Trustee
o Primary Servicer (as to loans serviced by it)
-----------------------------------------------------------------------------------------------------------------
SCHEDULE XVI
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.5 of the Pooling and Servicing Agreement to disclose to the
Depositor and the Paying Agent any information described in the corresponding
Form 10-K Item described in the "Item on Form 10-K" column to the extent such
party has knowledge (and in the case of financial statements required to be
provided in connection with 1112(b) below, possession) of such information
(other than information as to itself). Each of the Paying Agent, the Trustee,
the Master Servicer, any Primary Servicer and the Special Servicer (in its
capacity as such) shall be entitled to rely on the accuracy of the Prospectus
Supplement (other than information with respect to itself that is set forth in
or omitted from the Prospectus Supplement), in the absence of specific notice to
the contrary from the Depositor or a Seller. Each of the Paying Agent, the
Trustee, the Master Servicer, any Primary Servicer and the Special Servicer (in
its capacity as such) shall be entitled to conclusively assume that there is no
"significant obligor" other than a party identified as such in the Prospectus
Supplement. For this Series 2006-TOP24 Pooling and Servicing Agreement, each of
the Paying Agent, the Trustee, the Master Servicer, any Primary Servicer and the
Special Servicer (in its capacity as such) shall be entitled to assume that
there is no provider of credit enhancement, liquidity or derivative instruments
within the meaning of Items 1114 or 1115 of Regulation AB other than a party
identified as such in the Prospectus Supplement.
-----------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-----------------------------------------------------------------------------------------------------------------
Item 1B: Unresolved Staff Comments o Depositor
-----------------------------------------------------------------------------------------------------------------
o Paying Agent
o Any other party responsible for disclosure items on
Item 9B: Other Information Form 8-K
-----------------------------------------------------------------------------------------------------------------
o Paying Agent
Item 15: Exhibits, Financial Statement Schedules o Depositor
-----------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
o Special Servicer (as to itself)
Disclosure per Item 1117 of Regulation AB o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Any other Reporting Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
o Each Seller as sponsor (as defined in Regulation AB)
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-----------------------------------------------------------------------------------------------------------------
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1119 of Regulation AB o Special Servicer (as to itself)
o Paying Agent (as to itself)
o Trustee (as to itself)
o Depositor (as to itself)
o Primary Servicer (as to itself)
o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the Trust
o Each Seller as sponsors (as defined in Regulation AB)
o Originators under Item 1110 of Regulation AB
o Party under Item 1100(d)(1) of Regulation AB
-----------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Item 1112(b) of Regulation AB o Each Applicable Seller as sponsor (as defined in
Regulation AB)
o Master Servicer
o Special Servicer
o Primary Servicer (as to loans serviced by it)
-----------------------------------------------------------------------------------------------------------------
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and 1115(b) of o Trustee
Regulation AB o Master Servicer
o Special Servicer
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
SCHEDULE XVII
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column are obligated pursuant
to Section 13.7 of the Pooling and Servicing Agreement to report to the
Depositor and the Paying Agent the occurrence of any event described in the
corresponding Form 8-K Item described in the "Item on Form 8-K" column to the
extent such party has knowledge of such information (other than information as
to itself). Each of the Paying Agent, the Trustee, the Master Servicer, the
Primary Servicer and the Special Servicer (in its capacity as such) shall be
entitled to rely on the accuracy of the Prospectus Supplement (other than
information with respect to itself that is set forth in or omitted from the
Prospectus Supplement), in the absence of specific notice to the contrary from
the Depositor or a Seller. Each of the Paying Agent, the Trustee, the Master
Servicer, the Primary Servicer and the Special Servicer (in its capacity as
such) shall be entitled to conclusively assume that there is no "significant
obligor" other than a party identified as such in the Prospectus Supplement. For
this Series 2006-TOP24 Pooling and Servicing Agreement, each of the Paying
Agent, the Trustee, the Master Servicer, the Primary Servicer and the Special
Servicer (in its capacity as such) shall be entitled to assume that there is no
provider of credit enhancement, liquidity or derivative instruments within the
meaning of Items 1114 or 1115 of Regulation AB other than a party identified as
such in the Prospectus Supplement.
----------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
----------------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the
Trust
----------------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement o Trustee/Paying Agent/Master
Servicer/Depositor/Special Servicer as to the
Trust
----------------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership o Depositor
----------------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase o Master Servicer
a Direct Financial Obligation or an Obligation under an o Trustee
Off-Balance Sheet Arrangement
----------------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of Security o Paying Agent
Holders o Trustee
----------------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or o Depositor
Bylaws; Change of Fiscal Year
----------------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Material o Depositor
----------------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer
o Primary Servicer
o Trustee
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
----------------------------------------------------------------------------------------------------------
o Depositor
----------------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External o Depositor
Support o Paying Agent
----------------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution o Paying Agent
----------------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure o Depositor
----------------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure o Depositor
----------------------------------------------------------------------------------------------------------
Item 8.01 o Depositor
----------------------------------------------------------------------------------------------------------
Item 9.01 o Depositor
o Master Servicer
o Special Servicer
o Paying Agent
o Trustee
o Primary Servicer (as to loans serviced by it)
----------------------------------------------------------------------------------------------------------
SCHEDULE XVIII
Additional Disclosure Notification
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESSES
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Paying Agent
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services- [DEAL NAME]--SEC REPORT PROCESSING
Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: J. Xxxxxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing
Agreement, , dated as of [ ][ ], 2006, among [ ], as [ ], [ ], as [ ],
[ ], as [ ] and [ ], as [ ]. the undersigned, as [ ], hereby notifies you
that certain events have come to our attention that [will] [may] need to be
disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to
[ ], phone number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By:
--------------------------------------
Name:
Title:
SCHEDULE XIX
Seller Sub-Servicer
ArCap
