Execution Version
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XXXXXX XXXXXXX CAPITAL I 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 August 1, 2006
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP23
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions ..............................................................5
Section 1.2 Calculations Respecting Mortgage Loans ...................................69
Section 1.3 Calculations Respecting Accrued Interest .................................70
Section 1.4 Interpretation ...........................................................70
Section 1.5 ARD Loans ................................................................70
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage Loans ........71
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans .............................................73
Section 2.2 Acceptance by Trustee ....................................................76
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material Document
Defects and Material Breaches of Representations and Warranties ........78
Section 2.4 Representations and Warranties ...........................................84
Section 2.5 Conveyance of Interests ..................................................85
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans ..................86
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates .........................................................86
Section 3.2 Registration .............................................................87
Section 3.3 Transfer and Exchange of Certificates ....................................87
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates ........................93
Section 3.5 Persons Deemed Owners ....................................................94
Section 3.6 Access to List of Certificateholders' Names and Addresses ................94
Section 3.7 Book-Entry Certificates ..................................................94
Section 3.8 Notices to Clearing Agency ...............................................98
Section 3.9 Definitive Certificates ..................................................98
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer ..........................................99
SECTION 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
AND SERVICED PARI PASSU MORTGAGE LOANS .................................99
Section 4.2 Servicing Advances .......................................................100
Section 4.3 Advances by the Trustee ..................................................101
Section 4.4 Evidence of Nonrecoverability ............................................102
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Section 4.5 Interest on Advances; Calculation of Outstanding Advances with
Respect to a Mortgage Loan .............................................103
Section 4.6 Reimbursement of Advances and Advance Interest ...........................103
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections ..............................................................105
Section 5.2 Application of Funds in the Certificate Account and Interest Reserve
Account ................................................................109
Section 5.3 Distribution Account and Reserve Account .................................119
Section 5.4 Paying Agent Reports .....................................................121
Section 5.5 Paying Agent Tax Reports .................................................123
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally ..................................................123
Section 6.2 REMIC I ..................................................................124
Section 6.3 REMIC II .................................................................124
Section 6.4 Reserved .................................................................125
Section 6.5 REMIC III ................................................................125
Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls Due to
Nonrecoverability ......................................................131
Section 6.7 Prepayment Interest Shortfalls and Net Aggregate Prepayment
Interest Shortfalls ....................................................133
Section 6.8 Adjustment of Servicing Fees .............................................133
Section 6.9 Appraisal Reductions .....................................................133
Section 6.10 Compliance with Withholding Requirements .................................134
Section 6.11 Prepayment Premiums ......................................................135
ARTICLE VII
CONCERNING THE TRUSTEE, THE PAYING AGENT AND THE LUXEMBOURG
PAYING AGENT
Section 7.1 Duties of the Trustee and the Paying Agent ...............................135
Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent ...............137
Section 7.3 The Trustee and the Paying Agent Not Liable for Certificates or
Interests or Mortgage Loans ............................................139
Section 7.4 The Trustee and the Paying Agent May Own Certificates ....................140
Section 7.5 Eligibility Requirements for the Trustee and the Paying Agent ............140
Section 7.6 Resignation and Removal of the Trustee or the Paying Agent ...............141
Section 7.7 Successor Trustee or Paying Agent ........................................142
Section 7.8 Merger or Consolidation of Trustee or Paying Agent .......................143
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian .........144
Section 7.10 Authenticating Agents ....................................................146
Section 7.11 Indemnification of Trustee and the Paying Agent ..........................146
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Section 7.12 Fees and Expenses of Trustee and the Paying Agent ........................148
Section 7.13 Collection of Moneys .....................................................149
Section 7.14 Trustee To Act; Appointment of Successor .................................149
Section 7.15 Notification to Holders ..................................................151
Section 7.16 Representations and Warranties of the Trustee and the Paying Agent .......151
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained
by the Trustee and the Paying Agent ....................................153
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders .....................................................153
Section 7.19 Appointment of a Fiscal Agent ............................................155
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties .....................................156
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained
by the Master Servicer .................................................158
Section 8.3 Master Servicer's General Power and Duties ...............................158
Section 8.4 Primary Servicing and Sub-Servicing ......................................165
Section 8.5 Servicers May Own Certificates ...........................................167
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other ........167
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause ..............................................170
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files ..................175
Section 8.9 Documents, Records and Funds in Possession of Master Servicer to
be Held for the Trustee for the Benefit of the Certificateholders ......176
Section 8.10 Servicing Compensation ...................................................176
Section 8.11 Master Servicer Reports; Account Statements ..............................177
Section 8.12 Reserved .................................................................180
Section 8.13 Reserved .................................................................180
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the
Mortgaged Properties ...................................................180
Section 8.15 Other Available Information and Certain Rights of the Master
Servicer ...............................................................181
Section 8.16 Rule 144A Information ....................................................183
Section 8.17 Inspections ..............................................................184
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents ..............184
Section 8.19 Specially Serviced Mortgage Loans ........................................187
Section 8.20 Representations, Warranties and Covenants of the Master Servicer .........188
Section 8.21 Merger or Consolidation ..................................................189
Section 8.22 Resignation of Master Servicer ...........................................190
Section 8.23 Assignment or Delegation of Duties by Master Servicer ....................190
Section 8.24 Limitation on Liability of the Master Servicer and Others ................191
Section 8.25 Indemnification; Third-Party Claims ......................................193
Section 8.26 Reserved .................................................................196
Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions ............196
Section 8.28 Termination ..............................................................197
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Section 8.29 Procedure Upon Termination ...............................................200
Section 8.30 Operating Adviser Contact with Master Servicer and Special Servicer ......202
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer ...............................................202
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special
Servicer ...............................................................204
Section 9.3 Sub-Servicers ............................................................204
Section 9.4 Special Servicer General Powers and Duties ...............................205
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans; Due-On-
Encumbrance Clauses ....................................................208
Section 9.6 Release of Mortgage Files ................................................212
Section 9.7 Documents, Records and Funds in Possession of Special Servicer To
Be Held for the Trustee ..................................................213
Section 9.8 Representations, Warranties and Covenants of the Special Servicer ........214
Section 9.9 Standard Hazard, Flood and Comprehensive General Liability
Insurance Policies .....................................................215
Section 9.10 Presentment of Claims and Collection of Proceeds .........................217
Section 9.11 Compensation to the Special Servicer .....................................218
Section 9.12 Realization Upon Defaulted Mortgage Loans ................................219
Section 9.13 Foreclosure ..............................................................221
Section 9.14 Operation of REO Property ................................................221
Section 9.15 Sale of REO Property .....................................................225
Section 9.16 Realization on Collateral Security .......................................226
Section 9.17 Reserved .................................................................226
Section 9.18 Reserved .................................................................226
Section 9.19 Reserved .................................................................226
Section 9.20 Merger or Consolidation ..................................................226
Section 9.21 Resignation of Special Servicer ..........................................226
Section 9.22 Assignment or Delegation of Duties by Special Servicer ...................227
Section 9.23 Limitation on Liability of the Special Servicer and Others ...............228
Section 9.24 Indemnification; Third-Party Claims ......................................230
Section 9.25 Reserved .................................................................232
Section 9.26 Special Servicer May Own Certificates ....................................232
Section 9.27 Tax Reporting ............................................................232
Section 9.28 Application of Funds Received ............................................232
Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions ............233
Section 9.30 Termination ..............................................................233
Section 9.31 Procedure Upon Termination ...............................................236
Section 9.32 Certain Special Servicer Reports .........................................237
Section 9.33 Special Servicer to Cooperate with the Master Servicer, the Trustee
and Paying Agent .......................................................241
Section 9.34 Reserved .................................................................242
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Section 9.35 Reserved .................................................................242
Section 9.36 Sale of Defaulted Mortgage Loans .........................................242
Section 9.37 Operating Adviser; Elections .............................................245
Section 9.38 Limitation on Liability of Operating Adviser .............................246
Section 9.39 Duties of Operating Adviser ..............................................247
Section 9.40 Rights of the Holder of a B Note .........................................249
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All
Mortgage Loans .........................................................250
Section 10.2 Procedure Upon Termination of Trust ......................................252
Section 10.3 Additional Trust Termination Requirements ................................252
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders ..........................................254
Section 11.2 Access to List of Holders ................................................254
Section 11.3 Acts of Holders of Certificates ..........................................255
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration .....................................................256
Section 12.2 Prohibited Transactions and Activities ...................................261
Section 12.3 Modifications of Mortgage Loans ..........................................261
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status .........261
Section 12.5 Class P Grantor Trust ....................................................262
ARTICLE XIII
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 13.1 Intent of the Parties; Reasonableness ....................................262
Section 13.2 Information to be Provided by the Master Servicer, the Special
Servicer, any Primary Servicer and the Paying Agent ....................263
Section 13.3 Filing Obligations .......................................................264
Section 13.4 Form 10-D Filings ........................................................265
Section 13.5 Form 10-K Filings ........................................................266
Section 13.6 Xxxxxxxx-Xxxxx Certification .............................................269
Section 13.7 Form 8-K Filings .........................................................270
Section 13.8 Form 15 Filing; Incomplete Exchange Act Filings; Amendments to
Exchange Act Reports ...................................................272
Section 13.9 Annual Compliance Statements .............................................273
Section 13.10 Annual Reports on Assessment of Compliance with Servicing
Criteria ...............................................................274
Section 13.11 Annual Independent Public Accountants' Servicing Report ..................276
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Section 13.12 Indemnification ..........................................................277
Section 13.13 Amendments ...............................................................278
Section 13.14 Exchange Act Report Signatures ...........................................278
Section 13.15 Termination of the Paying Agent and Sub-Servicers ........................278
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Binding Nature of Agreement ..............................................279
Section 14.2 Entire Agreement .........................................................279
Section 14.3 Amendment ................................................................279
Section 14.4 GOVERNING LAW ............................................................281
Section 14.5 Notices ..................................................................282
Section 14.6 Severability of Provisions ...............................................282
Section 14.7 Indulgences; No Waivers ..................................................282
Section 14.8 Headings Not to Affect Interpretation ....................................283
Section 14.9 Benefits of Agreement ....................................................283
Section 14.10 Special Notices to the Rating Agencies ...................................283
Section 14.11 Counterparts .............................................................284
Section 14.12 Intention of Parties .....................................................284
Section 14.13 Recordation of Agreement .................................................286
Section 14.14 Rating Agency Monitoring Fees ............................................286
Section 14.15 Acknowledgement by Primary Servicer ......................................286
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EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-AB Certificate
EXHIBIT A-5 Form of Class A-4 Certificate
EXHIBIT A-6 Form of Class A-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 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
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d))
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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 Reserved
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
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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 August 1, 2006
(this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., a Delaware
corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), 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 March 14, 2006, as supplemented by a
free writing prospectus dated July 10, 2006, (the "Free Writing Prospectus", and
together with the Prospectus, the "Preliminary Prospectus Supplement"), and as
further supplemented by the final prospectus supplement dated July 19, 2006 (the
"Prospectus Supplement", and together with the Prospectus, the "Final Prospectus
Supplement"), 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 and Class P Certificates
will be offered for sale pursuant to a Private Placement Memorandum dated July
19, 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 designation, the
corresponding REMIC II Regular Interest (the "CORRESPONDING REMIC II REGULAR
INTEREST") and the initial Certificate Balance for each Class of Principal
Balance Certificates (the "CORRESPONDING CERTIFICATES").
CORRESPONDING INITIAL REMIC II
CORRESPONDING INITIAL CLASS REMIC II REGULAR REGULAR INTEREST
CERTIFICATES CERTIFICATE BALANCE INTERESTS CERTIFICATE BALANCE
Class A-1 $94,221,000 A-1 $94,221,000
Class A-2 $151,830,000 A-2 $151,830,000
Class A-3 $43,600,000 A-3 $43,600,000
Class A-AB $76,320,000 A-AB $76,320,000
Class A-4 $812,132,000 A-4 $812,132,000
Class A-M $161,384,000 A-M $161,384,000
Class A-J $112,969,000 A-J $112,969,000
Class B $32,276,000 B $32,276,000
Class C $16,139,000 C $16,139,000
Class D $26,225,000 D $26,225,000
Class E $14,121,000 E $14,121,000
Class F $12,104,000 F $12,104,000
Class G $14,121,000 G $14,121,000
Class H $10,086,000 H $10,086,000
Class J $4,035,000 J $4,035,000
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CORRESPONDING INITIAL REMIC II
CORRESPONDING INITIAL CLASS REMIC II REGULAR REGULAR INTEREST
CERTIFICATES CERTIFICATE BALANCE INTERESTS CERTIFICATE BALANCE
Class K $4,034,000 K $4,034,000
Class L $6,052,000 L $6,052,000
Class M $4,035,000 M $4,035,000
Class N $2,017,000 N $2,017,000
Class O $4,035,000 O $4,035,000
Class P $12,104,192 P $12,104,192
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.
REMIC III INTEREST INITIAL PASS-THROUGH INITIAL AGGREGATE CERTIFICATE FINAL SCHEDULED
DESIGNATION RATE(A) BALANCE OR NOTIONAL AMOUNT DISTRIBUTION DATE(B)
Class A-1 5.682% $94,221,000 4/12/2011
Class A-2 5.914% $151,830,000 8/12/2011
Class A-3 5.980% $43,600,000 6/12/2013
Class A-AB 5.970% $76,320,000 10/12/2015
Class A-4 5.983% $812,132,000 6/12/2016
Class A-M 5.983% $161,384,000 7/12/2016
Class A-J 5.983% $112,969,000 8/12/2016
Class X 0.025% $1,613,840,192 10/12/2015
Class B 5.983% $32,276,000 8/12/2016
Class C 5.983% $16,139,000 8/12/2016
Class D 5.983% $26,225,000 8/12/2016
Class E 5.983% $14,121,000 8/12/2016
Class F 5.983% $12,104,000 6/12/2018
Class G 5.983% $14,121,000 6/12/2018
Class H 5.983% $10,086,000 1/12/2020
Class J 5.983% $4,035,000 4/12/2021
Class K 5.983% $4,034,000 4/12/2021
Class L 5.983% $6,052,000 4/12/2021
Class M 5.983% $4,035,000 6/12/2021
Class N 5.983% $2,017,000 6/12/2021
Class O 5.983% $4,035,000 7/12/2021
Class P(c) 5.983% $12,104,192 6/12/2026
Class R-III(d) N/A N/A N/A
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(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 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, Class P and
Class X Certificates.
(b) The Final Scheduled Distribution Date for each Class of Certificates is
the Distribution Date on which such Class is expected to be paid in full,
assuming that timely payments (and no prepayments) will be made on the
Mortgage Loans in accordance with their terms (except that each ARD Loan
will be prepaid in full on its Anticipated Repayment Date).
(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 $1,613,840,193.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
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
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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 the Beachwood Place Mall A/B Mortgage Loan
and any other 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.
"ACCOUNTANT" means a person engaged in the practice of accounting
who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
other than the Residual Certificates, interest accrued during the Interest
Accrual Period relating to such Distribution Date on the Aggregate Certificate
Balance of such Class or Interest as of the close of business on the immediately
preceding Distribution Date at the respective rates per annum set forth in the
definition of the applicable Pass-Through Rate for each such Class. Accrued
Certificate Interest on the Class X Certificates for each Distribution Date will
equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan and any 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
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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 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.
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"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 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
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delinquency in payment with respect to such Mortgage Loan, A/B Mortgage Loan or
Loan Pair if such delinquency remains uncured, (ii) the date 30 days after
receipt of notice that the related Mortgagor has filed a bankruptcy petition or
the related Mortgagor has become the subject of involuntary bankruptcy
proceedings or the related Mortgagor has consented to the filing of a bankruptcy
proceeding against it or a receiver is appointed in respect of the related
Mortgaged Property, provided such petition or appointment is still in effect,
(iii) the date that is 30 days following the date the related Mortgaged Property
becomes an REO Property and (iv) the effective date of any modification to a
Money Term of a Mortgage Loan, A/B Mortgage Loan or Loan Pair, other than an
extension of the date that a Balloon Payment is due for a period of less than
six months from the original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum of (i) the
Scheduled Principal Balance of such Mortgage Loan, Loan Pair or A/B Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage Loan) less
the principal amount of any guaranty or surety bond with a rating of at least
"BBB-" (or its equivalent) by a nationally recognized statistical rating
organization and the undrawn principal amount of any letter of credit or debt
service reserve, if applicable, that is then securing such Mortgage Loan 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,
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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 Balance thereof, and any excess shall be allocated to the related A
Note. In the case of the Beachwood Place Mall Mortgage Loan, any Appraisal
Reduction will be calculated in respect of the Beachwood Place Mall A/B Mortgage
Loan taken as a whole and any such Appraisal Reduction will be allocated first
to the Beachwood Place Mall Loan C Note, second to the Beachwood Place Mall Loan
B Note and third to the Beachwood Place Mall Mortgage Loan.
"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
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therefor as of which such Mortgage Loan or such B Note remains outstanding and
part of the Trust, if no Scheduled Payment (other than the related delinquent
Balloon Payment) is due for such Due Date, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Scheduled Payment that would have been due in respect of such
Mortgage Loan or such B Note on such Due Date, if it had been required to
continue to accrue interest in accordance with its terms, and to pay principal
in accordance with the amortization schedule in effect immediately prior to, and
without regard to the occurrence of, its most recent Maturity Date (as such may
have been extended in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan or such B Note granted or agreed to by the Master Servicer or the
Special Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan or B Note
described in the preceding clause of this definition, the Assumed Scheduled
Payment) that was due in respect of the related Mortgage Loan or the related B
Note on the last Due Date prior to its becoming an REO Mortgage Loan. The amount
of the Assumed Scheduled Payment for any A Note or B Note shall be calculated
solely by reference to the terms of such A Note or B Note, as applicable (as
modified in connection with any bankruptcy or similar proceeding involving the
related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan 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
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required to be paid to the holder of the related B Note or Serviced Companion
Mortgage Loan, as applicable, pursuant to the terms of the related B Note or
Serviced Companion Mortgage Loan, as applicable, and the related Intercreditor
Agreement or Loan Pair Intercreditor Agreement (which amounts will be deposited
into the related A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, as applicable, pursuant to Section 5.1(c) and withdrawn from
such accounts pursuant to Section 5.2(a)) and (vi) Scheduled Payments collected
but due on a Due Date subsequent to the related Collection Period and (b) if and
to the extent not already among the amounts described in clause (a), (i) the
aggregate amount of any P&I Advances made by the Master Servicer or the Trustee
for such Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the
aggregate amount of any Compensating Interest payments made by the Master
Servicer for such Distribution Date pursuant to the terms hereof, and (iii) if
such Distribution Date occurs in March of any year, commencing March 2007 or on
the final Distribution Date, the aggregate of the Interest Reserve Amounts then
held on deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, 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, including, collectively, the Beachwood Place Mall B
Note and the Beachwood Place Mall C Note.
"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
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than the Pass-Through Rate on that Class of Certificates, then the Base Interest
Fraction shall be equal to 1.0.
"BEACHWOOD PLACE MALL A/B MORTGAGE LOAN" means the Beachwood Place
Mall Mortgage Loan, the Beachwood Place Mall B Note and the Beachwood Place Mall
C Note.
"BEACHWOOD PLACE MALL B NOTE" means, with respect to the Beachwood
Place Mall Mortgage Loan, the senior promissory note constituting a portion of
the related B Note not included in the Trust, which is subordinated in right of
payment to the Beachwood Place Mall Mortgage Loan to the extent set forth in the
related Intercreditor Agreement. The Beachwood Place Mall B Note is not a
Mortgage Loan.
"BEACHWOOD PLACE MALL C NOTE" means, with respect to the Beachwood
Place Mall Mortage Loan, the junior promissory note constituting a portion of
the related B Note not included in the Trust, which is subordinated in right of
payment to the Beachwood Place Mall Mortgage Loan and the Beachwood Place Mall B
Note to the extent set forth in the related Intercreditor Agreement. The
Beachwood Place Mall C Note is not a Mortgage Loan.
"BEACHWOOD PLACE MALL CONTROL APPRAISAL PERIOD" means a period
during which, with respect to a note, the outstanding principal balance of such
note, minus any Appraisal Reductions allocated to such note, and any losses
realized with respect to the Beachwood Place Mall A/B Mortgage Loan allocated to
such note, is less than 25% of the outstanding principal balance of such note. A
Beachwood Place Mall Control Appraisal Period will also exist with respect to a
note if the holder of such note is also the borrower or a related party of the
borrower.
"BEACHWOOD PLACE MALL CONTROLLING NOTEHOLDER" means the holder of
the Beachwood Place Mall C Note, so long as no Beachwood Place Mall Control
Appraisal Period exists for the Beachwood Place Mall C Note. If a Beachwood
Place Mall Control Appraisal Period exists for the Beachwood Place Mall C Note,
then the holder of the Beachwood Place Mall B Note will be the Beachwood Place
Mall Controlling Noteholder, so long as no Beachwood Place Mall Control
Appraisal Period exists for the Beachwood Place Mall B Note. If a Beachwood
Place Mall Control Appraisal Period exists for the Beachwood Place Mall B Note,
then the holder of the Beachwood Place Mall Mortgage Loan will be the Beachwood
Place Mall Controlling Noteholder.
"BEACHWOOD PLACE MALL MORTGAGE" means, the Mortgage securing the
Beachwood Place Mall A/B Mortgage Loan.
"BEACHWOOD PLACE MALL MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is
senior to the Beachwood Place Mall B Note and the Beachwood Place Mall C Note
and is secured by the related Mortgaged Property pursuant to the Beachwood Place
Mall Mortgage. The Beachwood Place Mall Mortgage Loan is a "Mortgage Loan."
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to
the Paying Agent and the Master Servicer to the effect that any proposed
transfer will not (i) cause the assets of the Trust to be regarded as plan
assets for purposes of the Plan Asset Regulations or (ii) give
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rise to any fiduciary duty on the part of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent or the Certificate
Registrar.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as 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.
"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
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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.
"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 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," "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.
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"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 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.
"CLASS X CERTIFICATES" means the Class X Certificates.
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for the REMIC III Regular Interests (other than the Class X
Certificates), weighted on the basis of the respective Certificate Balances of
such Classes, and (ii) the Class X Notional Amount for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"CLASS X STRIP RATE" means, for any Distribution Date, with respect
to any Class of REMIC III Regular Interests (other than the Class X
Certificates), the excess, if any, of the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date over the Pass-Through Rate for such Class of
REMIC III Regular Interests.
"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 August 3, 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
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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.
"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
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avoidance of doubt, no Repurchased Loan shall be included as a Mortgage Loan for
purposes of computing the amount of Compensating Interest.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan 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 -- Xxxxxx
Xxxxxxx Capital I Inc., Series 2006-TOP23 and the office of the Certificate
Registrar is presently located for certificate transfer purposes at Xxxxx Fargo
Center, Sixth Street and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) -- Xxxxxx
Xxxxxxx Capital I Inc., Series 2006-TOP23, and for all other purposes at 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services (CMBS) -- Xxxxxx Xxxxxxx Capital I Inc., Series 2006-TOP23, 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 REMIC II
Regular Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means, with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the
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Principal Balance of such Mortgage Loan outstanding as of the Cut-Off Date,
after taking into account all principal and interest payments made or due prior
to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates.
"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 August 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 August 1, 2006, and
Scheduled Payments due in August 2006 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on August 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 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.
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"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section
2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan
(other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage
Loan or any Loan Pair, a valuation by a court of competent jurisdiction of the
Mortgaged Property (or, with respect to a Non-Serviced Mortgage Loan or a
Serviced Pari Passu Mortgage Loan, the pro rata portion of the valuation
allocable to such Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage
Loan, as applicable) relating to such Mortgage Loan, A/B Mortgage Loan or Loan
Pair in an amount less than the then outstanding indebtedness under such
Mortgage Loan, A/B Mortgage Loan or Loan Pair, which valuation results from a
proceeding initiated under the United States Bankruptcy Code, as amended from
time to time, and that reduces the amount the Mortgagor is required to pay under
such Mortgage Loan, A/B Mortgage Loan or Loan Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"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 September 5, 2006.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property
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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.
"DISCLOSURE DOCUMENTS" means, collectively, the Free Writing
Prospectus, the Prospectus Supplement and the Private Placement Memorandum.
"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
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to Section 6.7, and (ii) Realized Losses allocated on such Distribution Date to
reduce the Distributable Certificate Interest payable to such Class or Classes
or Interest pursuant to Section 6.6, plus (B) the Unpaid Interest, plus (C) if
the Aggregate Certificate Balance is reduced because of a diversion of principal
in accordance with Section 5.2(a)(II)(iv), and there is a subsequent recovery of
amounts as set forth in Section 6.6(c)(i), then interest at the applicable
Pass-Through Rate that would have accrued and been distributable with respect to
the amount that the Aggregate Certificate Balance was so reduced, which interest
shall accrue from the date that the related Realized Loss is allocated through
the end of the Interest Accrual Period related to the Distribution Date on which
such amounts are subsequently recovered.
"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 12th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing September
12, 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 "A-1" by S&P and "F-1" by Fitch, if the deposits are
to be held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "AA-" by S&P and at least "AA-" by Fitch (or "A-"
by S&P and Fitch so long as the short-term unsecured debt obligations are rated
at least "A-1" by S&P and 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), 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 "A-1" in
the case of S&P, 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 "AA-" (or "A" (without regard to any plus or minus), if the
short-term unsecured debt obligations are rated at least "A-1") in the case of
S&P 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 "A-1+" by S&P or the long-term
unsecured debt obligations of such depository institution or trust company have
been assigned a rating by each Rating Agency at least equal "AA" by Fitch and
"AA-" by S&P or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect
to any security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase obligation has
been entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase 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 "A-1+" by S&P (or for which
Rating Agency Confirmation is obtained with respect to such ratings);
(vi) units of investment funds (including money market
funds) that are rated in the highest long-term category by Fitch, or if not
rated by Fitch then Fitch has issued a Rating Agency Confirmation, and "AAAm" by
S&P;
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(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 "AA-" by S&P (if rated by Fitch or, if not rated by Fitch, by S&P
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 "AAAm" or "AAAm-G" (or its equivalent rating) by S&P
and "AAA" (or its equivalent) 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 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.
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"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 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
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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 Fund.
"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 Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special Servicer in consultation with the
Operating Adviser and the Master Servicer
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(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 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
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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).
"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.
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"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, 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.
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"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 the Beachwood Place Mall B Note and the Beachwood Place Mall C
Note in accordance with the related Intercreditor Agreement (after being first
applied to Advance Interest) shall be payable to the Holder of the related
Beachwood Place Mall B Note and the Beachwood Place Mall C 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.
"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
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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 Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged
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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 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). Notwithstanding the foregoing, no Master
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Servicing Fee will be payable with respect to the Beachwood Place Mall B Note or
the Beachwood Place Mall C Note, or otherwise be allocable to the Beachwood
Place Mall B Note or the Beachwood Place Mall C Note or the Trust with respect
to such Beachwood Place Mall B Note or the Beachwood Place Mall C Note.
"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.
Notwithstanding the foregoing, no Master Servicing Fee will be payable with
respect to the Beachwood Place Mall B Note or the Beachwood Place Mall C Note,
or otherwise allocable to the Beachwood Place Mall B Note or the Beachwood Place
Mall C Note, or the Trust with respect to such Beachwood Place Mall B Note or
the Beachwood Place Mall C Note.
"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.
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"MONEY TERM" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the date of such Distribution Date, and of the Record
Date, Interest Accrual Period, and Determination Date for such Distribution
Date; (ii) the Available Distribution Amount for the Distribution Date, and any
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 Fund, including without limitation Advance
reimbursement and interest on Advances, and specifying the purpose of such fees
or expenses and the party receiving payment of those amounts, if applicable; (v)
the amount, if any, of such distributions to the Holders of each Class of
Principal Balance Certificates applied to reduce the respective Certificate
Balances thereof; (vi) the amount of such distribution to holders of each Class
of Certificates allocable to (A) interest accrued (including Excess Interest) at
the respective Pass-Through Rates, less any Net Aggregate Prepayment Interest
Shortfalls and (B) Prepayment Premiums; (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
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acquisition of the REO Property and the Scheduled Principal Balance thereof;
(xvii) as of the related Determination Date (A) as to any REO Property sold
during the related Collection Period, the date of the related determination by
the Special Servicer that it has recovered all payments which it expects to be
finally recoverable and the amount of the proceeds of such sale deposited into
the Certificate Account, and (B) the aggregate amount of other revenues
collected by the Special Servicer with respect to each REO Property during the
related Collection Period and credited to the Certificate Account, in each case
identifying such REO Property by the loan number of the related Mortgage Loan;
(xviii) the aggregate amount of Principal Prepayments 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 (xix) above, the amounts shall be expressed in the aggregate and as a
dollar amount per $1,000 of original principal amount of the Certificates for
all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23, 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
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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 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23"; 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
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of Leases has not been returned on or prior to the 45th day following the
Closing Date from the applicable public recording office, a copy of such
Assignment of Leases certified by the applicable Seller to be a true and
complete copy of the original Assignment of Leases submitted for recording,
together with (A) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
applicable Seller to be a true and complete copy of the original assignment
submitted for recording, and (B) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23," 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
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(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 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
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evidencing such Non-Serviced Mortgage Loan with respect to which the originals
shall be required), including a copy of such Non-Serviced Mortgage Loan
Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III 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 July 19,
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 July
19, 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 July
19, 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 July 19, 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.
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"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning set forth in the Preliminary Statement
hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement 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
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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 recoverability of any Advance shall be
conclusive and binding on the Certificateholders and, in the case of any B Note
or Serviced Companion Mortgage Loan, the holder of such B Note or Serviced
Companion Mortgage Loan, as applicable, and may, in all cases, be relied on by
the Trustee; provided, however, that the Special Servicer may, at its option,
make a determination in accordance with the Servicing Standard that any P&I
Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and
shall deliver to the Master Servicer and the Trustee notice of such
determination. Absent bad faith, any such determination shall be conclusive and
binding on the Certificateholders, the Master Servicer and the Trustee. Absent
bad faith, and pursuant to Section 4.1A of this Agreement, any determination as
to the recoverability of any advance made with respect to any Non-Serviced
Mortgage Loan by the Master Servicer or any Other Master Servicer shall be
conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee and the Master Servicer. In making any
nonrecoverability determination as 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, 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.
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"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, the
applicable intercreditor agreement with respect to a Non-Serviced Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the mortgage securing a
Non-Serviced Mortgage Loan.
"NON-SERVICED MORTGAGE LOAN 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 Certificates as a Class, the Class X Notional
Amount as of such date of determination and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X 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
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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.
"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
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the related Determination Date (subject to Section 5.1(h)), the portion of such
Scheduled Payment not received; (ii) with respect to any Mortgage Loan that is a
Balloon Mortgage Loan (including any REO Property as to which the related
Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was
due during or prior to the related Collection Period but was delinquent, in
whole or in part, as of the related Determination Date, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for such Balloon Mortgage Loan
for the related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with respect to
each REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled Payment for the Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the Master Servicer
by the Special Servicer, reduced by any amounts required to be paid as taxes on
such REO Income (including taxes imposed pursuant to Section 860G(c) of the
Code); provided, however, that the interest portion of any Scheduled Payment or
Assumed Scheduled Payment shall be advanced at a per annum rate equal to the sum
of the REMIC I Net Mortgage Rate relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee, the Excess Servicing Fee and the Primary Servicing Fee;
and provided, further, that the Scheduled Payment or Assumed Scheduled Payment
for any Mortgage Loan which has been modified shall be calculated based on its
terms as modified and provided, further, that the interest component of any P&I
Advance with respect to a Mortgage Loan as to which there has been an Appraisal
Reduction shall be an amount equal to the product of (i) the amount of interest
required to be advanced without giving effect to this proviso and (ii) a
fraction, the numerator of which is the Principal Balance of such Mortgage Loan
as of the immediately preceding Determination Date less any Appraisal Reduction
applicable to such Mortgage Loan (or, in the case of a Non-Serviced Mortgage
Loan or a Serviced Pari Passu Mortgage Loan, the portion of such Appraisal
Reduction allocable (based upon their respective Principal Balances) to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan under the
related Intercreditor Agreement or the related Loan Pair Intercreditor
Agreement, or in the case of an A/B Mortgage Loan, the portion of such Appraisal
Reduction allocable to the A Note pursuant to the definition of "Appraisal
Reduction") and the denominator of which is the Principal Balance of such
Mortgage Loan as of such Determination Date. All P&I Advances for any Mortgage
Loans that have been modified shall be calculated on the basis of their terms as
modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"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
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related pari passu loans secured by such Non-Serviced Mortgage Loan Mortgage on
a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan; provided, however, that the Pari Passu Loan
Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan set forth on
Schedule XII as to which such fee is calculated on a 30/360 basis shall be (a)
the related "Master Servicing Fee Rate" set forth in the Non-Serviced Mortgage
Loan Pooling and Servicing Agreement, multiplied by (b) 30 divided by the actual
number of days in the loan accrual period with respect to such loan.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to
any Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC
Regular Certificates, other than the Class X, 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, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter
(and with respect to the Class X, Class 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, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) the Class A-1 Certificates, the fixed rate
corresponding to such Class set forth in the Preliminary Statement hereto, (iv)
the Class A-2 Certificates shall equal the Weighted Average REMIC I Net Mortgage
Rate corresponding to such Class for such Distribution Date less 0.069%, (v) the
Class A-3 Certificates shall equal the Weighted Average REMIC I Net Mortgage
Rate corresponding to such Class for such Distribution Date less 0.003%, (vi)
the Class A-AB Certificates shall equal the Weighted Average REMIC I Net
Mortgage Rate corresponding to such Class for such Distribution Date less
0.013%, (vii) the 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 shall equal the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date and (viii) the Class X Certificates
shall equal the per annum rate equal to the quotient of the Accrued Certificate
Interest thereon for such Distribution Date and the Class X Notional Amount,
times twelve.
"PAYING AGENT" means Xxxxx Fargo Bank, National Association and any
successor or assign, as provided herein. The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent shall be
distinct from the duties of the Paying Agent.
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"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 Xxxxxx Xxxxxxx & Co. Incorporated and Bear,
Xxxxxxx & Co. Inc. 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 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
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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 August 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.
"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
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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 August 2006 that is not August 1, 2006, that
principal and interest payments for such month were paid on August 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 Proceeds,
Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection
Period and that
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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 July 19, 2006 pursuant to which 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 and Class P will be offered for sale.
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"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 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).
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"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 "A" by S&P if rated by S&P or if not rated by S&P, then S&P has
issued a Rating Agency Confirmation, and (ii) with respect to the Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond an insurance
company that has a claim paying ability no lower than "A" by Fitch if rated by
Fitch, or if not rated by Fitch, then rated A:IX by A.M. Best or as to which
Fitch has issued a Rating Agency Confirmation, and "A" by S&P if rated by S&P or
if not rated by S&P, then S&P has issued a Rating Agency Confirmation, or (iii)
in either case, a company not satisfying clause (i) or (ii) but with respect to
which a Rating Agency Confirmation is obtained. "Qualified Insurer" shall also
mean any entity that satisfies all of the criteria, other than the ratings
criteria, set forth in one of the foregoing clauses and whose obligations under
the related insurance policy are guaranteed or backed by an entity that
satisfies the ratings criteria set forth in such clause (construed as if such
entity were an insurance company referred to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the Certificate Account, and shall be
treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not greater than, and not more than two years
less than, that of the Deleted Mortgage Loan; (iv) has an original Loan-to-Value
Ratio not higher than that of the Deleted Mortgage Loan and a current
Loan-to-Value Ratio (equal to the outstanding principal balance on the date of
substitution divided by its current Appraised Value) not higher than the current
Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current Debt Service
Coverage Ratio equal to or greater than the current Debt Service Coverage Ratio
of the Deleted Mortgage Loan; (v) will comply with all of the representations
and warranties relating to Mortgage Loans set forth herein, as of the date of
substitution; (vi) has a Phase I Environmental Report relating to the related
Mortgaged Property in its Mortgage Files and such Phase I Environmental Report
does not, in the good faith reasonable judgment of the Special Servicer,
consistent with the Servicing Standard, raise material issues that have not been
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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 August 2041.
"RATING AGENCIES" means Fitch and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency,
provided that with respect to any matter affecting any Serviced Companion
Mortgage Loan, such confirmation shall also refer to the nationally recognized
statistical rating organizations then rating the securities representing an
interest in such loan and such rating organizations' respective ratings of such
securities.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses treated as Realized Interest
Losses pursuant to
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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, 1,531 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
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"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to
any Class of Certificates offered and sold outside of the United States in
reliance on Regulation S, a single temporary global Certificate, in definitive,
fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute a
Rehabilitated Mortgage Loan unless its related B Note would constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a Rehabilitated
Mortgage Loan unless its related A Note also would constitute a Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"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.
"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
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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 Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
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"REMIC II" means the segregated pool of assets consisting of the
REMIC I Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" 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-1 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to Aggregate Certificate
Balance of the Class A-2 Certificates, and which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having 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-AB" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-AB Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4" 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-4 Certificates, 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" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
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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" 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 D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" 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" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance
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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-1, REMIC II Regular Interest A-2, REMIC II Regular Interest
A-3, REMIC II Regular Interest A-AB, REMIC II Regular Interest A-4, REMIC II
Regular Interest A-M, REMIC II Regular Interest A-J, REMIC II Regular Interest
B, REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II
Regular Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K,
REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular
Interest N, REMIC II Regular Interest O and, REMIC II Regular Interest P.
"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 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
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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,
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.
"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
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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).
"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
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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 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.
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"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.
There are no Serviced Companion Mortgage Loans related to the Trust.
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of
the custodial sub-account(s) of the Certificate Account (but which are not
included in the Trust) created and maintained by the Master Servicer pursuant to
Section 5.1(c) on behalf of the holder of the related Serviced Companion
Mortgage Loan. Any such sub-account(s) shall be maintained as a sub-account of
an Eligible Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a
Serviced Pari Passu Mortgage Loan and its related Serviced Companion Mortgage
Loan secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means a Mortgage Loan that is
included in the Trust and paid on a pari passu basis with a Serviced Companion
Mortgage Loan. There are no Serviced Pari Passu Mortgage Loans in the Trust.
"SERVICE(S)(ING)" means, in accordance with Regulation AB, the act
of servicing and administering the Mortgage Loans or any other assets of the
Trust by an entity that meets the definition of "servicer" set forth in Item
1101 of Regulation AB and is subject to the disclosure requirements set forth in
Item 1108 of Regulation AB. For clarification purposes, any uncapitalized
occurrence of this term shall have the meaning commonly understood by
participants in the commercial mortgage-backed securities market.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee or the
Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2
and Section 7.17, respectively.
"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.
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"SERVICER MORTGAGE FILE" means copies of the mortgage documents
listed in the definition of "Mortgage File" relating to a Mortgage Loan and
shall also include, to the extent required to be (and actually) delivered to the
applicable Seller pursuant to the applicable Mortgage Loan documents, copies of
the following items: the Mortgage Note, any Mortgage, the Assignment of Leases
and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Special Servicer or the Trustee, as the case may be, designated as
a Servicing Advance pursuant to this Agreement and any other costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee, as the
case may be, to protect and preserve the security for such Mortgage Loan and/or
(if applicable) the related Serviced Companion Mortgage Loan or B Note.
"SERVICING CRITERIA" means the criteria set forth in paragraph (d)
of Item 1122 of Regulation AB, as such may be amended from time to time.
"SERVICING FUNCTION PARTICIPANT" means any Person, other than the
Master Servicer and the Special Servicer, that, within the meaning of Item 1122
of Regulation AB, is performing activities addressed by the Servicing Criteria,
unless such Person's activities relate only to 5% or less of the Mortgage Loans
(based on their Principal Balance). For clarification purposes, the Trustee, the
Primary Servicer and the Paying Agent are each Servicing Function Participants.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer, or an Additional Servicer, as the case may be, involved in, or
responsible for, the administration and servicing of the Mortgage Loans, any
Serviced Companion Mortgage Loan and any B Note whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee by the Master Servicer, or an Additional Servicer, as the case may be,
and signed by an officer of the Master Servicer, or an Additional Servicer, as
the case may be, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer or
the Special Servicer, as the case may be, to service and administer the Mortgage
Loans (and any Serviced Companion Mortgage Loan and B Note but not any
Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in 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:
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(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 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
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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 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
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the Trust and which (i) does not engage in any business unrelated thereto and
the financing thereof; (ii) does not have any assets other than those related to
its interest in Defeasance Collateral; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books, records
and accounts of any other Person; (iv) conducts business in its own name and
uses separate stationery, invoices and checks; (v) does not guarantee or assume
the debts or obligations of any other Person; (vi) does not commingle its assets
or funds with those of any other Person; (vii) transacts business with
affiliates on an arm's length basis pursuant to written agreements; and (viii)
holds itself out as being a legal entity, separate and apart from any other
Person, and otherwise complies with the single-purpose requirements established
by the Rating Agencies. The entity's organizational documents also provide that
any dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements.
"SPECIAL SERVICER" means 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
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information, documents and records relating to such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as reasonably requested by the Special
Servicer to enable it to assume its duties with respect to such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note. A Specially Serviced Mortgage Loan
shall cease to be a Specially Serviced Mortgage Loan from and after the date on
which the Special Servicer notifies the Master Servicer, the Operating Adviser,
the Paying Agent and the Trustee, in accordance with Section 8.1(b), that such
Mortgage Loan (and the related B Note in the case of an A/B Mortgage Loan, and
the related Serviced Companion Mortgage Loan in the case of a Loan Pair) has
become a Rehabilitated Mortgage Loan (and, in the case of an A Note (or B Note)
that is or was a Specially Serviced Mortgage Loan, its related B Note (or A
Note) has also become a Rehabilitated Mortgage Loan and, in the case of a
Serviced Pari Passu Mortgage Loan (or Serviced Companion Mortgage Loan) that is
or was a Specially Serviced Mortgage Loan, its related Serviced Companion
Mortgage Loan (or Serviced Pari Passu Mortgage Loan) has also become a
Rehabilitated Mortgage Loan), with respect to such Servicing Transfer Event,
unless and until the Master Servicer notifies the Special Servicer, the Paying
Agent and the Trustee, in accordance with Section 8.1(b) that another Servicing
Transfer Event with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUBCONTRACTOR" means any vendor, subcontractor or other Person that
is not responsible for the overall servicing of Mortgage Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Mortgage Loans under the direction or authority of the Master
Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.
"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).
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"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"10-K FILING DEADLINE" has the meaning set forth in Section 13.5.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the
assets which consist of all the assets of REMIC I (including the Mortgage Loans
(other than Excess Interest), such amounts related thereto as shall from time to
time be held in the Certificate Account, the Distribution Account, 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 0.00145% per annum (which includes the
Paying Agent Fee).
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"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Trustee Mortgage File" is used to refer to documents actually received by the
Trustee or a Custodian on its behalf, such terms shall not be deemed to include
such documents required to be included therein unless they are actually so
received.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated and
Bear, Xxxxxxx & Co. Inc. or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to that party by the Trust Fund as
part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of
Section 5.2(a)(II), but that has not been recovered from the Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to
any Class of Interests 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 Fund or is no longer serviced pursuant to the terms of this Agreement,
the holder of such Serviced Pari Passu Mortgage Loan or B Note, as applicable,
shall negotiate one or more new servicing agreements with the Master Servicer
and the Special Servicer, provided that, prior to entering into any such new
servicing agreement, the new holder of such Serviced Pari Passu Mortgage Loan or
B Note, as applicable, shall obtain and provide to the holder of the related
Serviced Companion Mortgage Loan and/or B Note written confirmation from each
rating agency then rating any securitization relating to such Serviced Companion
Mortgage Loan and/or B Note providing that such new servicing agreement will not
result in the downgrade, qualification or withdrawal of its then-current ratings
of any securities issued in such securitization; provided, that prior to such
time the Master Servicer and the Special Servicer shall continue to service the
related Loan Pair and/or A/B Mortgage Loan to the extent provided in the related
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, as
applicable.
(b) For the avoidance of doubt and subject to subsection (a)
above, the parties acknowledge that the rights and duties of each of the Master
Servicer and the Special Servicer under Article VIII and Article IX and the
obligation of the Master Servicer to make Advances, insofar as such rights,
duties and obligations relate to any A/B Mortgage Loan (including both the
related A Note and the related B Note) or Loan Pair, shall terminate upon the
earliest to occur of the following with respect to such A/B Mortgage Loan or
Loan Pair, as the case may be: (i) any repurchase of or substitution for the
related A Note or Serviced Pari Passu Mortgage Loan 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 Fund 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.
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ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby
assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any
Non-Serviced Mortgage Loan and (v) all other assets included or to be included
in 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 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
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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 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
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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, Class B, Class C, Class D, Class
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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, 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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Xxx-Xxxxxxxxxx Xxxxx 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, with regard to
the Trustee, in its good faith business judgment or, with respect to the Master
Servicer or Special Servicer, in accordance with the Servicing Standard, that
such Advance or such payment (including interest accrued thereon at the Advance
Rate) would be a Nonrecoverable Advance. 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23" (the "Certificate Account"). On or prior to the Closing Date,
the Master Servicer shall open, or cause to be opened, and shall maintain, or
cause to be maintained an additional separate account or accounts in the name of
"Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23" (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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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 Companion
Mortgage Loan (in their respective sole discretion), remit to the
holder of the related Serviced
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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 Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP23, Distribution Account" and (ii) an account (the "Reserve Account") to
be held in trust for the benefit of the holders of interests in the Trust until
disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo Bank,
National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP23, Reserve Account." The Distribution Account and the Reserve Account
shall be Eligible Accounts or in the case of the Reserve Account, a subaccount
of the Distribution Account. 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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 October 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.
(b) All distributions made in respect of the Class X Certificates
on each Distribution Date pursuant to Section 6.5 or Section 10.1, and allocable
to any particular REMIC III Regular Interest in accordance with the definition
of "Class X Strip Rate," shall be deemed to have first been distributed from
REMIC II to REMIC III in respect of such Class'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. 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 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 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
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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
and the Class X 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;
(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;
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(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;
(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;
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(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;
(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;
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(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;
(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;
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(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 X-0, X-0, X-0, X-XX and A-4.
(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;
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(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.
(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
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Realized Loss with respect to such Mortgage Loan (and the Paying Agent shall
allocate the Realized Loss) as follows:
(i) the amount withdrawn from the Certificate Account
shall be treated as Realized Principal Losses up to the amount of the aggregate
amount in the Collection Account allocable to principal received with respect to
the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of
the definition of Principal Distribution Amount, and shall be allocated to the
Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and
to the extent that any Realized Principal Loss exceeds the Certificate Balance
of the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal would
otherwise be paid on such Distribution Date, in proportion to such principal
payments; and
(ii) if the amount that the Master Servicer withdraws
from the Certificate Account as referenced in clause (b)(i) above exceeds such
amount allocable to principal received with respect to the Mortgage Loans for
such Collection Period, then such additional amounts shall constitute Unpaid
Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata
basis based upon the amount of accrued and unpaid interest thereon.
(c) If (x) a Final Recovery Determination is made with respect to
any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances and Realized Losses were
computed and allocated pursuant to clauses (a) and (b) above, and (y) amounts
are recovered thereafter:
(i) the portion of the amount of collections recovered
on the Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal 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
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Section 6.6(f). Realized Losses allocated to the Class X Certificates shall
reduce the amount of interest payable on the REMIC II Regular Interests, which
reduction shall be allocated pro rata based on the product of the Certificate
Balance of such REMIC II Regular Interest and the Class X Strip Rate applicable
to the Class of REMIC III Regular Interest (other than the Class X 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 and Class X 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.
(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
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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 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
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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 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.
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.
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(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:
(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
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(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.
(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
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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 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
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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 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),
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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 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 authorized to exercise corporate trust powers, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority, and (iii) an institution whose
short-term debt obligations are at all times rated not less than "A-1" by S&P
and 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 "A+" by S&P, 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 "AA-" by S&P (or "A+" by S&P if the Fiscal Agent's
short-term unsecured debt is rated at least "A-1" by S&P), then the Trustee must
be rated not less than "A-" by Fitch and "A-" by S&P, or otherwise acceptable to
the Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined
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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 "A" by S&P, 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 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.
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(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 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.
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(a) Any successor Trustee or Paying Agent appointed as provided in
Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its
predecessor Trustee or Paying Agent, as the case may be, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent, as the case may be, shall become effective
and such successor Trustee or Paying Agent, as the case may be, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee or Paying Agent herein. The predecessor Trustee
or Paying Agent shall deliver (at such predecessor's own expense) to the
successor Trustee or Paying Agent all Mortgage Files and documents and
statements related to the Mortgage Files held by it hereunder, and the
predecessor Trustee shall duly assign, transfer, deliver and pay over (at such
predecessor's own expense) to the successor Trustee, the entire Trust, together
with all instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer. The predecessor Trustee or Paying
Agent, as the case may be, shall also deliver all records or copies thereof
maintained by the predecessor Trustee or Paying Agent in the administration
hereof as may be reasonably requested by the successor Trustee, or Paying Agent,
as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee or Paying Agent shall execute and deliver such other
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee or Paying Agent, as the
case may be, all such rights, powers, duties and obligations. Anything herein to
the contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee or Paying Agent shall accept appointment
as provided in this Section unless at the time of such appointment such
successor Trustee or Paying Agent, as the case may be, shall be eligible under
the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee or
Paying Agent as provided in this Section, the successor Trustee or Paying Agent
shall mail notice of the succession of such Trustee or Paying Agent hereunder to
all Holders of Certificates at their addresses as shown in the Certificate
Register and to the Rating Agencies. The expenses of such mailing shall be borne
by the successor Trustee or Paying Agent. If the successor Trustee or Paying
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee or Paying Agent, the Master Servicer shall cause such
notice to be mailed at the expense of the successor Trustee or Paying Agent, as
applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE OR PAYING AGENT.
Any Person into which the Trustee or Paying Agent may be merged or converted or
with which it 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
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unreasonably withheld), without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS
OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from
time to time appoint one or more independent third-party agents to perform all
or any portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
(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;
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(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any
time, constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(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.
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(i) Subject to the consent of the Depositor, which consent shall
not be unreasonably withheld, the Trustee, at its sole cost and expense, may
appoint at any time a successor Custodian. Until such time as the Trustee
appoints a successor Custodian, the Trustee shall be the Custodian hereunder.
Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating
Agent hereunder for the purpose of executing and authenticating Certificates.
Any successor Authenticating Agent must be acceptable to the Depositor and must
be a corporation or national bank organized and doing business under the laws of
the United States of America or of any state and having a principal office and
place of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee and the
Depositor. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent and the Depositor; provided that the Trustee may not
terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall
be removed as Paying Agent hereunder. Upon receiving a notice of resignation or
upon such a termination, or in case at any time the Authenticating Agent shall
cease to be eligible in accordance with the provisions of Section 7.10(a), the
Trustee may appoint a successor Authenticating Agent, shall give written notice
of such appointment to the Depositor and shall mail notice of such appointment
to all Holders of Certificates. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. No such Authenticating
Agent shall be appointed unless eligible under the provisions of Section
7.10(a). No Authenticating Agent shall have responsibility or liability for any
action taken by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF 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
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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 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
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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 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
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of the Certificates hereunder. The provisions of this Section 7.12 shall survive
any termination of this Agreement and the resignation or removal of the Trustee
or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated
pursuant to this Agreement, the Trustee shall be the successor in all respects
to the Master Servicer in its capacity under this Agreement and the transactions
set forth or provided for therein and shall have all the rights and powers and
be subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer by the terms and provisions
of this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master Servicer's
obligation to repay losses resulting from the investment of funds in any account
established under this Agreement), except any ongoing obligations to the 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
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such successor out of payments on Mortgage Loans as it and such successor shall
agree subject to Section 8.10. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Master Servicer shall cooperate with the Trustee and any
successor servicer in effecting the termination of the Master Servicer's
responsibilities and rights under this Agreement, including, without limitation,
notifying Mortgagors of the assignment of the servicing function and providing
the Trustee and successor servicer all documents and records in its possession
in electronic or other form reasonably requested by the successor servicer to
enable the successor servicer to assume the Master Servicer's functions
hereunder and the transfer to the Trustee or such successor servicer of all
amounts which shall at the time be or should have been deposited by the Master
Servicer in the Certificate Account and any other account or fund maintained
with respect to the Certificates or thereafter be received by the Master
Servicer with respect to the Mortgage Loans. Neither the Trustee nor any other
successor servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof caused by (i) the failure of the Master Servicer to deliver, or
any delay in delivering, cash, documents or records to it, or (ii) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer. The Trustee shall be reimbursed for all of its out-of-pocket expenses
incurred in connection with obtaining such successor Master Servicer by the
Trust within 30 days of the Trustee's submission of an invoice with respect
thereto, to the extent such expenses have not been reimbursed by the Master
Servicer as provided herein; such expenses paid by the Trust shall be deemed to
be an Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated
pursuant to this Agreement, in accordance with Section 9.30, 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
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Affiliate must meet the standards for a successor Special Servicer set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided that no such
compensation shall be in excess of that permitted to the Special Servicer under
this Agreement. The Trustee and such successor shall take such actions,
consistent with this Agreement as shall be necessary to effectuate any such
succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as provided herein; and such expenses paid by the Trust
shall be deemed to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of, 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
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a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties that would materially and adversely affect the
Trustee's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Trustee, or (iii) the terms of any material
agreement or instrument to which the Trustee is a party or by which it is bound;
the Trustee is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect its
performance under this Agreement;
(iii) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions contemplated
by this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
(v) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Paying Agent hereby represents and warrants as of the date
hereof that:
(i) the Paying Agent is a national banking association,
duly organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its property,
to carry on its business as presently conducted, and to enter into and perform
its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of
this Agreement have been duly authorized by all necessary action on the part of
the Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental
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agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the
Paying Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration with any
state, federal or other governmental authority or agency, except such as has
been or will be obtained, given, effected or taken in order for the Paying Agent
to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered
by the Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of the
Paying Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending
or, to the best of the Paying Agent's knowledge, threatened, against the Paying
Agent that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair materially
the ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE AND THE PAYING AGENT . Each of the Trustee and
the Paying Agent, at its own respective expense, shall maintain in effect a
Fidelity Bond and a Errors and Omissions Insurance Policy. The Errors and
Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified
Insurer in form and in amount customary for trustees or paying agents in similar
transactions (unless the Trustee or the Paying Agent, as the case may be, self
insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the
Paying Agent, as the case may be, shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term debt rating of the
Trustee or the Paying Agent, as the case may be, is not less than "A" as rated
by Fitch, if rated by Fitch and "A" as rated by S&P, 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
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responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(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.
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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 and S&P (or "A+" from Fitch and
S&P, if such Fiscal Agent's short-term unsecured debt rating is at least "F-1"
by Fitch and at least "A-1" by S&P) (or, in the case of either Rating Agency,
such other rating as shall not result in a downgrade, qualification or
withdrawal of the rating by the Rating Agencies of any Class of Certificates
with a rating as evidenced in writing by the Rating Agencies).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, any Fiscal Agent appointed by the Trustee shall make such Advance as and
when required by the terms of this Agreement on behalf the Trustee as if such
Fiscal Agent were the Trustee hereunder. To the extent that a Fiscal Agent makes
an Advance pursuant to this Section 7.19(b) or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and 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 Fund, 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.
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(e) The Trustee shall promptly notify the other parties hereto,
the Certificateholders and the holders of any Servicer Companion Mortgage Loan
in writing of the appointment, resignation or removal of any Fiscal Agent.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and
on behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Master Servicer shall service and administer the Mortgage Loans, any B Note and
any Serviced Companion Mortgage Loan in accordance with the Servicing Standard
and the terms of this Agreement (subject to the servicing of any Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer in accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement). Certain
of the provisions of this Article VIII make explicit reference to their
applicability to Mortgage Loans, any B Note and any Serviced Companion Mortgage
Loan; notwithstanding such explicit references, references to "Mortgage Loans"
contained in this 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.
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(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).
(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.
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(g) Each Non-Serviced Mortgage Loan shall be serviced and
administered by the applicable Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer pursuant to the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER . The Master Servicer, at its expense,
shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not in any event less than "A" as rated by Fitch and "BBB" as rated by S&P,
respectively, the Master Servicer may self-insure for the Servicer Fidelity Bond
and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
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
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related collateral), (B) to consent to assignments and assumptions or
substitutions, and transfers of interest of any Mortgagor, in each case subject
to and in accordance with the terms of the related Mortgage Loan and Section
8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to
consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the Master Servicer deems reasonable under the circumstances,
(F) to execute and deliver, on behalf of the Certificateholders (and, if
applicable, the holders of the B Note and Serviced Companion Mortgage Loan) and
the Trustee, documents relating to the management, operation, maintenance,
repair, leasing and marketing of the related Mortgaged Properties, including
agreements and requests by the Mortgagor with respect to modifications of the
standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes, any Serviced Companion Mortgage Loan and any B Note under
the terms of the Mortgage, including all rights of consent or approval
thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter
into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust (and, if applicable, the holders of the B Note
and Serviced Companion Mortgage Loan) or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." Notwithstanding the above, the Master Servicer shall have no power to
(i) waive any Prepayment Premiums or (ii) consent to any modification of a Money
Term of a Mortgage Loan. Nothing contained in this Agreement shall limit the
ability of the Master Servicer to lend money to (to the extent not secured, in
whole or in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Mortgagor as
though the 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
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calculations and prepare all reports required hereunder with respect to such
Specially Serviced Mortgage Loans (other than calculations and reports expressly
required to be made by the Special Servicer hereunder) as if no Servicing
Transfer Event had occurred and shall continue to collect all Scheduled
Payments, make Servicing Advances as set forth herein, make P&I Advances as set
forth herein and render such incidental services with respect to such Specially
Serviced Mortgage Loans, all as are specifically provided for herein, but shall
have no other servicing or other duties with respect to such Specially Serviced
Mortgage Loans. The Master Servicer shall give notice within three Business Days
to the Special Servicer of any collections it receives from any Specially
Serviced Mortgage Loans, subject to changes agreed upon from time to time by the
Special Servicer and the Master Servicer. The Special Servicer shall instruct
within one Business Day after receiving such notice the Master Servicer on how
to apply such funds. The Master Servicer within one Business Day after receiving
such instructions shall apply such funds in accordance with the Special
Servicer's instructions. Each Mortgage Loan that becomes a Specially Serviced
Mortgage Loan shall continue as such until such Mortgage Loan becomes a
Rehabilitated Mortgage Loan. The Master Servicer shall not be required to
initiate extraordinary collection procedures or legal proceedings with respect
to any Mortgage Loan or to undertake any pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Power of Attorney attached hereto as Exhibit S-1. The Master
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of additional unexecuted
powers of attorney from the Master Servicer or the Special Servicer, the Trustee
shall execute and return to the Master Servicer, 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).
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(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:
(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
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of such loss. The Master Servicer shall not direct the investment of funds held
in any Escrow Account and retain the income and gain realized therefrom if the
terms of the related Mortgage Loan or applicable law permit the Mortgagor to be
entitled to the income and gain realized from the investment of funds deposited
therein, and the Master Servicer shall not be required to invest amounts on
deposit in Escrow Accounts in Eligible Investments or Eligible Accounts to the
extent that the Master Servicer is required by either law or under the terms of
any related Mortgage Loan to deposit or invest (or the Mortgagor is entitled to
direct the deposit or investment of) such amounts in another type of investments
or accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established, and (ii) the Master Servicer shall have no liability for any loss
in investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and 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
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related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer
complies) to own the Defeasance Collateral (subject to customary qualifications)
or (B) the Master Servicer has established a Single-Purpose Entity to hold all
Defeasance Collateral relating to the Defeasance Loans, (iv) the Master Servicer
has requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) a Rating Agency Confirmation is received if the
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance, unless such Rating
Agency has waived in writing such Rating Agency Confirmation requirement (or
such higher threshold, if any, as shall be published by the Rating Agencies) or
(B) if the Mortgage Loan is less than or equal to both of the amounts set forth
in clause (A) and the successor Mortgagor with respect to the subject Mortgage
Loan and its affiliates collectively have assumed Mortgage Loans comprising an
aggregate principal amount at least equal to the lesser of $20,000,000 and 5% of
the Aggregate Certificate Balance, either a Notice and Certification in the form
attached hereto as Exhibit Z (or such less restrictive forms, if any, as shall
be adopted by the Rating Agencies) or a Rating Agency Confirmation is received
from S&P and (vi) a Rating Agency Confirmation is received if the Mortgage Loan
is one of the ten largest Mortgage Loans, by Principal Balance. Any customary
and reasonable out-of-pocket expense incurred by the Master Servicer pursuant to
this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan
pursuant to the related Mortgage, Mortgage Note or other pertinent document, if
so allowed by the terms of such documents.
The parties hereto acknowledge that if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, including, but not limited to, rating agency fees, then the sole
obligation of the 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
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the date that is thirty (30) days after the Closing Date, the Seller has
notified the related ground lessor of the transfer of such Mortgage Loan to the
Trust pursuant to this Agreement and informed such ground lessor that any
notices of default under the related Ground Lease should thereafter be forwarded
to the Master Servicer (as evidenced by delivery of a copy thereof to the Master
Servicer). The Master Servicer shall promptly notify the ground lessor if the
Seller has failed to do so by the thirtieth day after the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of
any B Note has agreed that the Master Servicer and the Special Servicer are
authorized and obligated to service and administer the B Note pursuant to this
Agreement. The Master Servicer shall be entitled, during any period when the A
Note and B Note under any A/B Mortgage Loan do not constitute Specially Serviced
Mortgage Loans, to exercise the rights and powers granted under the related
Intercreditor Agreement to the "Note A Holder" and/or the "Servicer" referred to
therein. For the avoidance of doubt, the parties acknowledge that neither the
Master Servicer nor the Special Servicer shall be entitled or required to
exercise the rights and powers granted to any "Note B Holder" as defined under
the related Intercreditor Agreement.
(k) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owner of any Non-Serviced Mortgage Loan has agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer, and the applicable Non-Serviced Mortgage Loan Master Servicer
and the applicable Non-Serviced Mortgage Loan Special Servicer are authorized
and obligated to service and administer such Non-Serviced Mortgage Loan pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Master Servicer's obligations and responsibilities hereunder
and the Master Servicer's authority with respect to any Non-Serviced Mortgage
Loan are limited by and subject to the terms of the related Non-Serviced
Mortgage Loan Intercreditor Agreement and the rights of the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer with respect thereto under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer
shall use reasonable best efforts consistent with the Servicing Standard to
monitor the servicing of any Non-Serviced Mortgage Loan by the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and 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
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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 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
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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.
(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).
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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 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
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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.
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
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to maintain or itself obtain insurance against property damage resulting from
terrorism or similar acts if the terms of the related Mortgage Loan documents
and the related Mortgage so require unless the Master Servicer determines that
(i) such insurance is not available at any rate or (ii) such insurance is not
available at commercially reasonable rates and such hazards are not at the time
commonly insured against for properties similar to the related Mortgaged
Property and located in or around the region in which such related Mortgaged
Property is located; provided, that such determination must be made by the
Master Servicer not less frequently (but need not be made more frequently) than
annually, but in any event, shall be made on the approximate date on (but not
later than sixty (60) days thereafter) which the Master Servicer receives notice
of the renewal, replacement or cancellation of coverage (as evidenced by the
related insurance policy or insurance certificate). Notwithstanding the
limitation set forth in the preceding sentence, if the related Mortgage Loan
documents and the related Mortgage require the Mortgagor to maintain insurance
against property damage resulting from terrorism or similar acts, the Master
Servicer shall prior to availing itself of any limitation described in that
sentence with respect to any Mortgage Loan (or any component loan of an A/B
Mortgage Loan) that has a principal balance in excess of $2,500,000, obtain the
approval or disapproval of the Special Servicer and the Operating Adviser
(subject to the penultimate paragraph of Section 9.39). The Master Servicer
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
by S&P, 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
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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 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
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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 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
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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 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).
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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 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,
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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 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
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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 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 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 October
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 8.11(h) on each
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Report Date, commencing in October 2006; (iv) a Loan Set-Up File (with respect
to the initial Distribution Date only) not later than the Report Date in October
2006; (v) a Loan Periodic Update File not later than each Report Date commencing
in September 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 October 2006; (vii) a Delinquent Loan Status Report on each
Report Date, commencing in October 2006; (viii) an Historical Loan Modification
Report not later than each Report Date, commencing in October 2006, (ix) an
Historical Liquidation Report not later than each Report Date, commencing in
October 2006; and (x) an REO Status Report on each Report Date, commencing in
October 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 September 30, 2006, 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
June 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 October
2006 for the year-end 2005 (but only to the extent the Master Servicer has
received the applicable operating statements and rent rolls on or before the
Closing Date), and the Report Date occurring in June of each subsequent year,
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
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Special Servicer, the Paying Agent, the Trustee and the holder of any Serviced
Companion Mortgage Loan, within 30 days following receipt thereof by the Master
Servicer, copies of any annual, monthly or quarterly financial statements and
rent rolls collected with respect to the Mortgaged Properties. As and to the
extent reasonably requested by the Special Servicer, the Master Servicer shall
make inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgaged Property in general. The Paying Agent shall
provide or make available electronically at no cost to the Certificateholders or
Certificate Owners, the Rating Agencies, the Trustee, the Special Servicer, the
Operating Adviser, the Depositor and its designees, the Placement Agents, the
Underwriters, and any prospective investors or Certificate Owners who provide
the Paying Agent with an investor certification satisfactory to the Paying
Agent, and solely as it relates to any A/B Mortgage Loan, to the holder of the
related B Note and solely as it relates to any Loan Pair, to the holder of the
related Serviced Companion Mortgage Loan, the CMSA Operating Statement Analysis
Reports, CMSA Financial Files and NOI Adjustment Worksheets described above
pursuant to Section 5.4(a). The Master Servicer (but not the Primary Servicer
under the 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,
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non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies and
other relevant matters relating to this Agreement (which access may occur by
means of the availability of information on the Master Servicer's or the Paying
Agent's internet website), 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
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Paying Agent, the Master Servicer, the Special Servicer, the Rating Agencies,
the Operating Adviser or the Depositor may be accompanied by a letter from the
Master Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws
restrict any person who possesses material, non-public information
regarding the Trust which issued Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23
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 is removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer and is not
reinstated within 60 days and the ratings then assigned by S&P to any Classes of
Certificates are downgraded, qualified or withdrawn (including, without
limitation, being placed on "negative credit watch") in connection with such
removal;
(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
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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 is on
the approved list of commercial mortgage loan servicers maintained by S&P and
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 S&P.
(c) Notwithstanding the other provisions of this Section 8.28, (A)
if any Event of Default on the part of the Master Servicer occurs that affects a
Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Xxxxx'x, if (x) the Trustee shall receive notice from Xxxxx'x 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 Xxxxx'x to any class of certificates issued in such securitization or (y)
Xxxxx'x has 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 Trustee obtained such actual knowledge) and, in the case of either of
clauses (x) or (y), citing servicing concerns with the Master Servicer as the
sole or material factor in such rating
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action, and in either case, the Master Servicer is not otherwise terminated in
accordance with this Section 8.28, then, at the request of the holder of such
affected Serviced Companion Mortgage Loan, the Trustee shall require the Master
Servicer to appoint, within 30 days of the Trustee's request, a Sub-Servicer
(or, if the related Mortgage Loan is currently being sub-serviced, to replace,
within 30 days of the Trustee's request, the then-current Sub-Servicer with a
new Sub-Servicer) with respect to the related Mortgage Loan only, but as to no
other Mortgage Loan. In connection with the Master Servicer's appointment of a
Sub-Servicer at the request of the Trustee in accordance with this Section
8.28(c), the Master Servicer shall obtain a Rating Agency Confirmation (such
Rating Agency Confirmation to be an expense of the requesting Serviced Companion
Mortgage Loan holder). The related Sub-Servicing Agreement shall provide that
any Sub-Servicer appointed by the Master Servicer at the request of the Trustee
in accordance with this Section 8.28(c) shall be responsible for all duties, and
shall be entitled to all compensation, of the Master Servicer under this
Agreement with respect to the subject Loan Pair.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon
which the final transfer by the Master Servicer to the 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 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
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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.
(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.
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(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 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.
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(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 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
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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 claim shall be paid by, and reimbursable to, the Master
Servicer (of if applicable, the Special Servicer) as a Servicing Advance. All
extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by the Special Servicer in fulfilling its obligations under this
Section 9.1 shall be paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "A" as rated by Fitch
and "A" as rated by S&P, the Special Servicer may self-insure for the Servicer
Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set forth
in Section 8.4 for a Sub-Servicer of the Master Servicer. 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
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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 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
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the name of the Trust (or holder of a B Note or the Serviced Companion Mortgage
Loan, if applicable). In the performance of its duties hereunder, the Special
Servicer shall be an independent contractor and shall not, except in those
instances where it is, after notice to the Trustee as provided above, taking
action in the name of the Trust (or holder of a B Note or the Serviced Companion
Mortgage Loan, if applicable), be deemed to be the agent of the Trust (or holder
of a B Note or the Serviced Companion Mortgage Loan, as applicable). The Special
Servicer shall indemnify the Trustee for any loss, liability or reasonable
expense (including attorneys' fees) incurred by the Trustee or any director,
officer, employee, agent or Controlling Person of it or its affiliates in
connection with any negligent or intentional misuse of the foregoing powers of
attorney furnished to the Special Servicer by the Trustee. Such indemnification
shall survive the resignation or termination of the Special Servicer hereunder,
the resignation or termination of the Trustee and the termination of this
Agreement. The Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the Master Servicer or the Depositor
that is not attributable to the failure of the Special Servicer to perform its
obligations hereunder. The Special Servicer may conclusively rely on any advice
of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 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
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Special Servicer shall be required to consult with the special servicer of the
Other Securitization (the "Other Special Servicer") in respect thereof, and
shall provide the Other Special Servicer with an opportunity to review any
proposed action to be taken in respect thereof. The Other Special Servicer and
the operating adviser of the Other Securitization (the "Other Operating
Adviser") shall have such opportunity to consult with the Special Servicer for a
period from the date of receipt of the Special Servicer's written description of
its proposed action through (but excluding) the fifth Business Day following the
date of receipt (the "Initial Review Period"). The Special Servicer shall
implement its written proposal if the Other Special Servicer (in consultation
with the Other Operating Adviser) does not disapprove the proposed action within
the Initial Review Period, unless the Special Servicer has been directed to do
otherwise by the Operating Adviser (in which event the Special Servicer shall
advise the Other Special Servicer of such alternate course of action). If the
Other Special Servicer (in consultation with the Other Operating Adviser)
disagrees with any aspect of the written proposal and, after consulting with the
Special Servicer during the Initial Review Period, is unable to reach agreement
on the proper course of action and notifies the Special Servicer of its
disagreement in writing, then the Other Special Servicer shall be entitled to an
additional period of five Business Days (the "Additional Review Period") to
continue its discussions with the Special Servicer and the Operating Adviser. If
the Other Special Servicer and the Special Servicer agree on a revised course of
action within the Initial Review Period or the Additional Review Period, then
the Special Servicer shall revise the written proposal to reflect the agreed
upon revised course of action and shall implement that course of action. If the
Other Special Servicer and the Special Servicer are unable to agree on the
appropriate course of action by the end of the Additional Review Period, then
the Special Servicer shall decide, in accordance with the Servicing Standard set
forth in this Agreement, what course of action to follow. If an Event of Default
has occurred and is continuing with respect to the Special Servicer under this
Agreement, which Event of Default does not relate to any Mortgage Loan other
than the related Loan Pair, then the trustee under the pooling and servicing
agreement relating to the Other Securitization (the "Other Pooling and Servicing
Agreement") shall be entitled to direct the Trustee to (a) terminate the
defaulting Special Servicer solely with respect to the related Loan Pair and (b)
appoint a successor Special Servicer that meets the eligibility requirements of
the Other Pooling and Servicing Agreement and this Agreement. In such event, the
trustee under the Other Pooling and Servicing Agreement shall exercise its
rights set forth in the preceding sentence at the direction of the
certificateholders holding at least 25% of the certificate balance of the
certificates issued under the Other Securitization or the Other Operating
Adviser. The replacement of the Special Servicer with respect to a Loan Pair, as
contemplated above, will in any event be subject to obtaining Rating Agency
Confirmation hereunder and any required Rating Agency Confirmation with respect
to the certificates by the trustee under the Other Pooling and Servicing
Agreement.
(e) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to
service and administer such Non-Serviced Mortgage Loan pursuant to the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the Special Servicer's obligations and
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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:
(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.
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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. 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
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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 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
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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 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
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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:
(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.
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(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Mortgage Loan, the Special Servicer will
immediately notify the Master Servicer. The Special Servicer shall determine, in
accordance with the Servicing Standard, whether an instrument of satisfaction
shall be delivered and, if the Special Servicer determines that such instrument
should be delivered, the Special Servicer shall deliver written approval of such
delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to
the Master Servicer to request any documents and instruments in the possession
of the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under 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
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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).
(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
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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, 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.
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(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,
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
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the Special Servicer determines that (i) such insurance is not available at any
rate or (ii) such insurance is not available at commercially reasonable rates
and such hazards are not at the time commonly insured against for properties
similar to the related Mortgaged Property and located in or around the region in
which such related Mortgaged Property is located. The Special Servicer shall
notify the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer with a minimum claims
paying ability rating of at least "A" by Fitch and "A" by S&P or otherwise
approved by the Rating Agencies or (ii) if the Special Servicer, provided that
the rating of such Person's long-term debt is not less than "A" by Fitch and "A"
by S&P, self-insures for its obligations as set forth in the first paragraph of
this Section 9.9. In the event that the Special Servicer shall cause any
Mortgage Loan, Serviced Companion Mortgage Loan and B Note to be covered by such
a master force placed or blanket insurance policy, the incremental cost of such
insurance allocable to such Mortgage Loan, Serviced Companion Mortgage Loan and
B Note (i.e., other than any minimum or standby premium payable for such policy
whether or not any Mortgage Loan is then covered thereby), if not borne by the
related Mortgagor, shall be paid by the Special Servicer as a Servicing Advance,
subject to the provisions of Section 4.4 hereof. If such policy contains a
deductible clause, the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 9.9 and there shall have been a loss that would have been covered by
such policy, deposit in the Certificate Account the amount not otherwise payable
under such master force placed or blanket insurance policy because of such
deductible clause to the extent that such deductible exceeds (i) the deductible
under the related Mortgage Loan, A/B Mortgage Loan or Serviced Companion
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, A/B Mortgage Loan or Serviced Companion Mortgage Loan, the
deductible amount with respect to insurance policies generally available on
properties similar to the related Mortgaged Property which is consistent with
the Servicing Standard, and deliver to the Trustee an Officer's Certificate
describing the calculation of such amount. In connection with its activities as
administrator and servicer of the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note, the Special Servicer agrees to present, on its
behalf and on behalf of the Trustee, claims under any such master force placed
or blanket insurance policy.
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.
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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 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. No servicing compensation of any nature will be allocated to the Beachwood
Place Mall B Note or the Beachwood Place Mall C Note, or payable by the holder
of the Beachwood Place Mall B Note or the Beachwood Place Mall C Note, except
for Work-Out Fees, Liquidation Fees (to the extent set forth in the related
Intercreditor Agreement) and other Special Servicer Compensation payable during
the period in which the Beachwood Place Mall A/B Mortgage Loan is a Specially
Serviced Mortgage Loan or, with respect to Work-Out Fees, 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
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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 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
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within the meaning of CERCLA, or any applicable comparable federal, state or
local law, or a "discharger" or "responsible party" thereunder, unless the
Special Servicer has also previously determined in accordance with the Servicing
Standard, based on a Phase I Environmental Report prepared by a Person (who may
be an employee or affiliate of the Master Servicer or the Special Servicer) who
regularly conducts environmental site assessments in accordance with the
standards of FNMA in the case of multi-family mortgage loans and customary
servicing practices in the case of commercial loans for environmental
assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the
Mortgaged Property in compliance with applicable Environmental Laws is
reasonably likely to produce a greater recovery on a net present value basis
than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions with respect to the affected Mortgaged Property is
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions); provided, however, that such compliance pursuant to clause (i)
and (ii) above or the taking of such action pursuant to this clause (iii) shall
only be required to the extent that the cost thereof is a Servicing Advance of
the Master Servicer or the Special Servicer pursuant to this Agreement, subject
to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced 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
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Environmental Insurance Policy, then the Special Servicer shall take such action
as it deems to be in the best economic interest of the Trust (and the holder of
the related B Note if in connection with an A/B Mortgage Loan and the holder of
the related Serviced Companion Mortgage Loan if in connection with a Loan Pair,
taken as a collective whole), including, without limitation, releasing the lien
of the related Mortgage. If the Special Servicer determines that a material
possibility exists that Liquidation Expenses with respect to Mortgaged Property
(taking into account the cost of bringing it into compliance with applicable
Environmental Laws) would exceed the Principal Balance of the related Mortgage
Loan, the Special Servicer shall not attempt to bring such Mortgaged Property
into compliance and shall not acquire title to such Mortgaged Property unless it
has received the written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage Loan
and the holder of the related Serviced Companion Mortgage Loan if in connection
with a Loan Pair), shall sell the REO Property expeditiously, but in any event
within the time period, and subject to the conditions, set forth in Section
9.15. Subject to Section 9.15, the Special Servicer shall manage, conserve,
protect and operate the REO Property for the holders of beneficial interests in
the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair) solely for the purpose of its prompt disposition
and sale.
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 Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates Series
2006-TOP23, 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
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days of receipt. The Special Servicer shall account separately for funds
received or expended with respect to each REO Property. All funds in each REO
Account may be invested only in Eligible Investments. The Special Servicer shall
notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the Operating
Adviser, and subject to the specific requirements and prohibitions of this
Agreement and any applicable consultation rights of the holder of the related B
Note relating to an A/B Mortgage Loan, to do any and all things in connection
therewith as are consistent with the Servicing Standard, subject to the REMIC
Provisions, and in such manner as the Special Servicer deems to be in the best
interest of the Trust (and in the case of any A/B Mortgage Loan, the holder of
the related B Note and the Trust as a collective whole and in the case of any
Loan Pair, the holder of the related Serviced 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).
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(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall
not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with
the provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any
such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating
to any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations to the Trustee with respect to the operation and management of any
such REO Property;
(v) if the Independent Contractor is an Affiliate of the
Special Servicer, the consent of the Operating Adviser and a Nondisqualification
Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for the Trust (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
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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;
(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
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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 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
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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.
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.
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(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 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
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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 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 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
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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:
(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.
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(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 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
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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, 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.
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(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 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
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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 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
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extended to the extent necessary to permit the Special Servicer to cure such
failure; provided, however, that such cure period may not exceed 90 days; (iv)
the Special Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall have
been given to the Special Servicer by the Depositor or the Trustee, provided,
however, that if the Special Servicer certifies to the Trustee and the Depositor
that the Special Servicer is in good faith attempting to remedy such failure,
such cure period may be extended to the extent necessary to permit the Special
Servicer to cure such failure; provided, however, that such cure period may not
exceed 90 days; (v) the Special Servicer is removed from S&P's Select Servicer
List as a U.S. Commercial Mortgage Special Servicer and is not reinstated within
60 days and the ratings then assigned by S&P to any Classes of Certificates are
downgraded, qualified or withdrawn (including, without limitation, being placed
on "negative credit watch") in connection with such removal; (vi) a decree or
order of a court or agency or supervisory authority having jurisdiction in the
premises in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; (vii) the
Special Servicer shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings relating to the Special Servicer or of or relating to all or
substantially all of its property; (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,
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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) With respect to the Beachwood Place Mall A/B Mortgage Loan,
the Beachwood Place Mall Controlling Noteholder, shall have the right to
terminate the Special Servicer with respect to the Beachwood Place Mall A/B
Mortgage Loan at any time for any reason whatsoever. If the Beachwood Place Mall
Controlling Noteholder so terminates the Special Servicer, the Beachwood Place
Mall Controlling Noteholder shall appoint a successor Special Servicer who will
(i) provide the Trustee with an opinion of counsel reasonably satisfactory to
the Trustee with respect to certain requirements as provided for under the
related Intercreditor Agreement 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 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(d) until a
successor Special Servicer shall have been appointed. The holder of the
Beachwood Place Mall Controlling Noteholder shall pay any costs and expenses
incurred by the Trust in connection with the removal and appointment of a
Special Servicer pursuant to this paragraph (unless such removal is based on any
of the events or circumstances set forth in Section 9.30(b)).
(e) Notwithstanding the other provisions of this Section 9.30, (A)
if any Event of Default on the part of the Special Servicer occurs that affects
a Serviced Companion Mortgage Loan or (B) for so long as any Serviced Companion
Mortgage Loan is serviced hereunder and is included in a securitization that is
rated by Xxxxx'x, if (x) the Trustee shall receive notice from Xxxxx'x 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 Xxxxx'x to any class of certificates issued in such securitization or (y)
Xxxxx'x has 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 Trustee received such notice) and, in the case of either of clauses (x)
or (y), citing servicing concerns with the Special Servicer as the sole or
material factor in such rating action, and in either case, the Special Servicer
is not otherwise terminated in accordance with this Section 9.30, then the
holder of the affected Serviced Companion Mortgage Loan may require the Trustee
to terminate the duties and obligations of the Special Servicer with respect to
the subject Loan Pair only, but as to no other Mortgage Loan; and, in such
event, subject to the applicable consultation rights of any particular related
Serviced Companion Mortgage Loan under the related Loan Pair Intercreditor
Agreement, the Operating Adviser shall appoint (or, in the event of the failure
of the Operating Adviser to so appoint, the Trustee shall appoint), within 30
days of such Serviced Companion Mortgage Loan holder's request, a replacement
special servicer with respect to the related Loan Pair. In connection with the
appointment of a replacement special servicer with respect to a Loan Pair at the
request of a related Serviced Companion Mortgage Loan holder under this Section
9.30(e), the Trustee shall obtain a Rating
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Agency Confirmation (such Rating Agency Confirmation to be an expense of the
requesting Serviced Companion Mortgage Loan holder). Any replacement special
servicer appointed at the request of a Serviced Companion Mortgage Loan holder
in accordance with this Section 9.30(e) shall be responsible for all duties, and
shall be entitled to all compensation, of the Special Servicer under this
Agreement with respect to the subject Loan Pair. If a replacement special
servicer is appointed with respect to a Loan Pair or an A/B Mortgage Loan at the
request of the Beachwood Place Mall Controlling Noteholder or a Serviced
Companion Mortgage Loan holder, as applicable, in accordance with Section
9.30(d) or this Section 9.30(e) (any such replacement special servicer, a "Loan
Pair-Specific Special Servicer"), such that there are multiple parties acting as
Special Servicer hereunder, then, unless the context clearly requires otherwise:
(i) when used in the context of imposing duties and obligations on the Special
Servicer hereunder or the performance of such duties and obligations, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer,
insofar as such duties and obligations relate to a Loan Pair or an A/B Mortgage
Loan, as applicable, as to which a Loan Pair-Specific Special Servicer has been
appointed, and shall mean the General Special Servicer, in all other cases
(provided that, in Section 9.18 and Section 9.19, the term "Special Servicer"
shall mean each Loan Pair-Specific Special Servicer and the General Special
Servicer); (ii) when used in the context of identifying the recipient of any
information, funds, documents, instruments and/or other items, the term "Special
Servicer" shall mean the related Loan Pair-Specific Special Servicer, insofar as
such information, funds, documents, instruments and/or other items relate to a
Loan Pair or A/B Mortgage Loan, as applicable, as to which a Loan Pair-Specific
Special Servicer has been appointed in accordance with Section 9.30(d) or this
Section 9.30(e), and shall mean the General Special Servicer, in all other
cases; (iii) when used in the context of granting the Special Servicer the right
to purchase Specially Serviced Mortgage Loans pursuant to Section 9.36, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer,
if such Specially Serviced Mortgage Loan is part of a Loan Pair or A/B Mortgage
Loan as to which a Loan Pair-Specific Special Servicer has been appointed in
accordance with this Section 9.30(e), and shall mean the General Special
Servicer, in all other cases; (iv) when used in the context of granting the
Special Servicer the right to purchase all of the Mortgage Loans and any REO
Properties remaining in the Trust pursuant to Section 10.1(b), the term "Special
Servicer" shall mean the General Special Servicer only; (v) when used in the
context of granting the Special Servicer any protections, limitations on
liability, immunities and/or indemnities hereunder, the term "Special Servicer"
shall mean each Loan Pair-Specific Special Servicer and the General Special
Servicer; and (vi) when used in the context of requiring indemnification from,
imposing liability on, or exercising any remedies against, the Special Servicer
for any breach of a representation or warranty hereunder or for any negligence,
bad faith or willful misconduct in the performance of duties and obligations
hereunder or any negligent disregard of such duties and obligations or otherwise
holding the Special Servicer responsible for any of the foregoing, the term
"Special Servicer" shall mean the related Loan Pair-Specific Special Servicer or
the General Special Servicer, as applicable. References in this Section 9.30(e)
to "General Special Servicer" mean the Person performing the duties and
obligations of Special Servicer with respect to the Mortgage Loans (exclusive of
each and every Loan Pair as to which a Loan Pair-Specific Special Servicer has
been appointed).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given
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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.
(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
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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.
(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 August 15 of each year, commencing with August
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 August 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
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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.
(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
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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 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
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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.
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;
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(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 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 the Beachwood Place Mall B Note or the Beachwood
Place Mall C Note (solely with respect to the Beachwood Place Mall A/B Mortgage
Loan and in accordance with the terms of the related Intercreditor Agreement),
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
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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
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
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prepayment restriction; the physical condition of the related Mortgaged
Property; the state of the local economy; the expected recoveries from the
Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure
strategy instead of the Option being exercised; and the Trust's obligation to
dispose of any REO Property as soon as practicable consistent with the objective
of maximizing proceeds for all Certificateholders but in no event later than the
three-year period (or such extended period) specified in Section 9.15. If the
Mortgage Loan as to which the Option relates is a Serviced Pari Passu Mortgage
Loan, then the Option Holder, in connection with its exercise of such option,
shall also be required to purchase the related Serviced Companion Mortgage Loan
under the Other Pooling and Servicing Agreement or the related Intercreditor
Agreement. 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
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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 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
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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.
(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, (i) with respect to the Beachwood Place Mall A/B Mortgage
Loan, pursuant to the related Intercreditor Agreement, the Beachwood Place Mall
Controlling Noteholder shall be entitled to exercise the rights and powers
granted to the Operating Adviser herein with respect to the Beachwood Place Mall
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 Beachwood Place Mall
A/B Mortgage Loan) to refer to the holder of the Beachwood Place Mall B Note or
the Beachwood Place Mall C Note, as applicable; provided, however, that if
neither the holder of the Beachwood Place Mall B Note nor the Beachwood Place
Mall C Note is the Beachwood Place Mall Controlling Noteholder in accordance
with the terms of the related Intercreditor Agreement, then the the Beachwood
Place Mall Controlling Noteholder will be the holder of the Beachwood Place Mall
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
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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 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);
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(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.
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
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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 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
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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.
A holder of the Beachwood Place Mall B Note or the Beachwood Place
Mall C Note, as applicable, shall be entitled to terminate the Special Servicer
with respect to the Beachwood Place Mall A/B Mortgage Loan as set forth in
Section 9.30(d) of this Agreement.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION
OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee 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)
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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 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.
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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 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.
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(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;
(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
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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.
(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.
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(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.
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.
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(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 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,
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.
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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 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
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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 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
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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 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.
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(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) 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.
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(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.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall
permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be
subject to a tax on "prohibited transactions" or "prohibited contributions" or
other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the 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
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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.
(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
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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 Xxxxxx Xxxxxxx Capital I Inc., Series 2006-TOP23 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, 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 Xxxxxx Xxxxxxx Capital I
Inc., Series 2006-TOP23 transaction (or an Other Securitization, if applicable),
and (ii) provide to the
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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) 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.
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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, 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
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(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 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. 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
xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.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.
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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 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
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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 (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 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 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. 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 xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.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
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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 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
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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 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
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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. 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)
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 xx_xxxx_xxxxxxx@xxxxxxxxxxxxx.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.
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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, 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
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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, 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
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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 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
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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 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.
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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 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.
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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 July
19, 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 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
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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 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
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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 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
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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
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
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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.
(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
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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, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend; (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: Xxxxx X.
Xxxxxxx; (H) in the case of the initial Operating Adviser, ARCap REIT, Inc.,
0000 X. X'Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X.
Xxxxxxx; 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) Xxxxxx Xxxxxxx Capital I Inc., Series
2006-TOP23; 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.
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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;
(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:
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If to S&P, to:
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
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:
(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
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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 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,
-285-
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 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.
-286-
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.
XXXXXX XXXXXXX CAPITAL INC.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name:Xxxxxxx X. Xxxxxx
Title:Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------------
Name:Xxxxxxx X. XxXxxxx
Title:Vice President
ARCAP SERVICING, INC., as Special Servicer
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name:Xxxxxxx X. Xxxxxx
Title:Chairman and Chief Executive 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/ Xxxx Ani
-------------------------------------
Name:Xxxx Ani
Title:Vice President
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/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name:Xxxxxx X. Xxxxxxxxx
Title:Vice President and Senior Investment Counsel
-287-
By:/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name:Xxxxx X. Xxxxxxxx
Title:Second Vice President and Counsel
-288-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 3rd day of August, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Xxxxxx Xxxxxxx
Capital I Inc. and acknowledged to me that such 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/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Notary Public
[Notary Stamp]
-289-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On August 2, 2006, before me, Xxxxxx X. Xxxxxxxx, Notary Public,
personally appeared Xxxxxxx X. XxXxxxx, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on
the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Notary Public
[Notary Stamp]
-290-
STATE OF MAINE )
) ss.:
COUNTY OF CUMBERLAND )
On the 26th day of July, 2006, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxx known to me to be the Chairman
and Chief Executive 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/ Xxxxxx X. Xxxxx
-----------------------------------------
Notary Public
[Notary Stamp]
-291-
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX)
On this 2 day of August 2006, before me, Xxxxx X'Xxxx, a notary
public in and for said State, personally appeared Xxx X. Xxxxx, known to me to
be a Asst. Vice President of LaSalle Bank National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, 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 X'Xxxx
-----------------------------------------
Notary Public
[Notary Stamp]
-292-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 3rd day of August, 2006, before me, a notary public in and
for said State, personally appeared Xxxx Xxxx, 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/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Notary Public
[Notary Stamp]
-293-
STATE OF IOWA )
) ss.:
COUNTY OF POLK )
On the 3rd day of August, 2006, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx
known to me to be the Vice President and Senior Investment Counsel, and Second
Vice President and Counsel, respectively, of Principal Global Investors, LLC,
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/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Notary Public
[Notary Stamp]
-294-
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
Policies and procedures are instituted to monitor any performance or other Master Servicer
triggers and events of default in accordance with the transaction agreements. Special Servicer
1122(d)(1)(i) 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
------------------------------------------------------------------------------------------------------------------------
N/A
Any requirements in the transaction agreements to maintain a back-up servicer
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
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Payments on mortgage loans are deposited into the appropriate custodial bank Master Servicer
accounts and related bank clearing accounts no more than two business days Special Servicer
following receipt, or such other number of days specified in the transaction Primary Servicer
1122(d)(2)(i) agreements.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Disbursements made via wire transfer on behalf of an obligor or to an
1122(d)(2)(ii) investor are made only by authorized personnel.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Advances of funds or guarantees regarding collections, cash flows or Special Servicer
distributions, and any interest or other fees charged for such advances, are Trustee
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
The related accounts for the transaction, such as cash reserve accounts or Master Servicer
accounts established as a form of overcollateralization, are separately Special Servicer
maintained (e.g., with respect to commingling of cash) as set forth in the Primary Servicer
1122(d)(2)(iv) transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Each custodial account is maintained at a federally insured depository Master Servicer
institution as set forth in the transaction agreements. For purposes of this Special Servicer
criterion, "federally insured depository institution" with respect to a Primary Servicer
foreign financial institution means a foreign financial institution that
1122(d)(2)(v) meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Special Servicer
Paying Agent
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Primary Servicer
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Reports to investors, including those to be filed with the Commission, are
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.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the
1122(d)(3)(ii) transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
1122(d)(3)(iii) transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Paying Agent
Amounts remitted to investors per the investor reports agree with cancelled
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
------------------------------------------------------------------------------------------------------------------------
Trustee
Master Servicer
Special Servicer
Collateral or security on mortgage loans is maintained as required by the Primary Servicer
1122(d)(4)(i) transaction agreements or related mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------
Trustee
Mortgage loan and related documents are safeguarded as required by the
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
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Payments on mortgage loans, including any payoffs, made in accordance with Special Servicer
the related mortgage loan documents are posted to the Servicer's obligor Primary Servicer
records maintained no more than two business days after receipt, or such
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.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
The Servicer's records regarding the mortgage loans agree with the Servicer's Primary Servicer
1122(d)(4)(v) records with respect to an obligor's unpaid principal balance.
------------------------------------------------------------------------------------------------------------------------
-2-
------------------------------------------------------------------------------------------------------------------------
APPLICABLE
RELEVANT SERVICING CRITERIA PARTY(IES)
------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Changes with respect to the terms or status of an obligor's mortgage loans Special Servicer
(e.g., loan modifications or re-agings) are made, reviewed and approved by Primary Servicer
authorized personnel in accordance with the transaction agreements and
1122(d)(4)(vi) related pool asset documents.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Loss mitigation or recovery actions (e.g., forbearance plans, modifications Special Servicer
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
1122(d)(4)(vii) timeframes or other requirements established by the transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Records documenting collection efforts are maintained during the period a Special Servicer
mortgage loan is delinquent in accordance with the transaction agreements. Primary Servicer
Such records are maintained on at least a monthly basis, or such other period
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).
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Adjustments to interest rates or rates of return for mortgage loans with Primary Servicer
1122(d)(4)(ix) variable rates are computed based on the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Regarding any funds held in trust for an obligor (such as escrow accounts): Primary Servicer
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
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.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Payments made on behalf of an obligor (such as tax or insurance payments) are Primary Servicer
made on or before the related penalty or expiration dates, as indicated on
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.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Any late payment penalties in connection with any payment to be made on Primary Servicer
behalf of an obligor are paid from the servicer's funds and not charged to
the obligor, unless the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Disbursements made on behalf of an obligor are posted within two business Primary Servicer
days to the obligor's records maintained by the servicer, or such other
1122(d)(4)(xiii) number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------
Master Servicer
Delinquencies, charge-offs and uncollectible accounts are recognized and Primary Servicer
1122(d)(4)(xiv) recorded in accordance with the transaction agreements.
------------------------------------------------------------------------------------------------------------------------
-3-
------------------------------------------------------------------------------------------------------------------------
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 the
1122(d)(4)(xv) transaction agreements.
------------------------------------------------------------------------------------------------------------------------
-4-
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-TOP23 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 AB
-------------------------------------------------------------------------------------------------------------------------
-5-
-------------------------------------------------------------------------------------------------------------------------
o Party under Item 1100(d)(1) of Regulation AB
-------------------------------------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds o Depositor
-------------------------------------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities o Paying Agent
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)
-------------------------------------------------------------------------------------------------------------------------
-6-
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-TOP23 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
-------------------------------------------------------------------------------------------------------------------------
Item 9B: Other Information o Paying Agent
o Any other party responsible for disclosure items on
Form 8-K
-------------------------------------------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules o Paying Agent
o Depositor
-------------------------------------------------------------------------------------------------------------------------
Additional Item: o Master Servicer (as to itself)
Disclosure per 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 AB
-------------------------------------------------------------------------------------------------------------------------
-7-
-------------------------------------------------------------------------------------------------------------------------
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
Regulation AB o Trustee
o Master Servicer
o Special Servicer
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
-8-
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-TOP23 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 o Trustee/Paying Agent/Master
Agreement 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
Off-Balance Sheet Arrangement o Trustee
-------------------------------------------------------------------------------------------------------------------------
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
o Depositor
-------------------------------------------------------------------------------------------------------------------------
-9-
-------------------------------------------------------------------------------------------------------------------------
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)
-------------------------------------------------------------------------------------------------------------------------
-10-
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
Xxxxxx Xxxxxxx Capital I Inc., as Depositor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Friend
Xxxxxxx Xxxxxx
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:
-11-
SCHEDULE XIX
Seller Sub-Servicers
NONE
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this __ day of August 2006, before me, a notary public in and for said State,
personally appeared _____________, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person who executed the within
instrument as Vice President on behalf of Xxxxxx Xxxxxxx Capital I Inc., and
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
________________________________
Notary Public
-00-
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF SAN FRANCISCO )
On this ___ day of August 2006, before me, a notary public in and for said
State, personally appeared ____________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Vice President of ___________________, 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.
________________________________
Notary Public
-14-
STATE OF )
) ss.:
COUNTY OF )
On the ______ day of August 2006, before me, a notary public in and for said
State, personally appeared ___________________ known to me to be a of
_______________, 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.
________________________________
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August 2006, before me, a notary public in and for said
State, personally appeared __________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of ____________, 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.
________________________________
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August 2006, before me, a notary public in and for said
State, personally appeared __________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of _______________, 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.
________________________________
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August 2006, before me, a notary public in and for said
State, personally appeared __________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of ________________ 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.
________________________________
Notary Public
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of August 2006, before me, a notary public in and for said
State, personally appeared __________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of ___________________ 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.
================================================================================
XXXXXX XXXXXXX CAPITAL I 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 AUGUST 1, 2006
----------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP23
================================================================================
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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
INITIAL PASS-THROUGH RATE: 5.682%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $94,221,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE:
$94,221,000
No. A-1-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AR 0
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $151,830,000
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE CLOSING DATE:
$151,830,000
No. A-2-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AS 8
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3 CERTIFICATES AS OF THE CLOSING
DATE: $43,600,000
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE AS OF THE CLOSING DATE:
$43,600,000
No. A-3-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AT 6
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-AB CERTIFICATES AS OF THE CLOSING
DATE: $76,320,000
CERTIFICATE BALANCE OF THIS CLASS A-AB CERTIFICATE AS OF THE CLOSING DATE:
$76,320,000
No. A-AB-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AU 3
CLASS A-AB CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-AB Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23
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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4 CERTIFICATES AS OF THE CLOSING
DATE: $812,132,000
CERTIFICATE BALANCE OF THIS CLASS A-4 CERTIFICATE AS OF THE CLOSING DATE:
$812,132,000
No. A-AB-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AV 1
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-M CERTIFICATES AS OF THE CLOSING
DATE: $161,384,000
CERTIFICATE BALANCE OF THIS CLASS A-M CERTIFICATE AS OF THE CLOSING DATE:
$161,384,000
No. A-M-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AW 9
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
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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 MINNESOTA,
NATIONAL ASSOCIATION, as Certificate
Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: AUGUST 3, 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 MINNESOTA,
NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ______________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-J CERTIFICATES AS OF THE CLOSING
DATE: $112,969,000
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE AS OF THE CLOSING DATE:
$112,969,000
No. A-J-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AX 7
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $16,139,000
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE:
$16,139,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. B-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AB 5
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act _________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
INITIAL PASS-THROUGH RATE: 5.983%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $26,225,000
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE:
$26,225,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. C-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AC 3
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $14,121,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE:
$14,121,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. D-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AD 1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $12,104,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE:
$12,104,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. E-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AE 9
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act _________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $14,121,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE:
$14,121,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. F-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AF 6
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $10,086,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE:
$10,086,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. G-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AG 4
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $4,035,000
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE:
$4,035,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. G-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AH 2
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $4,034,000
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE CLOSING DATE:
$4,034,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. J-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AJ 8
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $6,052,000
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE CLOSING DATE:
$6,052,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. K-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AK 5
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $4,035,000
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE CLOSING DATE:
$4,035,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. L-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AL 3
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $2,017,000
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE CLOSING DATE:
$2,017,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. M-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AM 1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Xxxxxx Xxxxxxx Capital I Inc. (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act__________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $4,035,000
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE CLOSING DATE:
$4,035,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. N-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AN 9
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $12,104,192
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE CLOSING DATE:
$12,104,192 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. O-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AP 4
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act _________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $94,221,000
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE CLOSING DATE:
$94,221,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. P-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP NO. 61749M AQ 2
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class P Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor", which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
NO. R-I-1
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-I Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
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 Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
NO. R-II-1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-II Certificates issued
by the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx
Capital I Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
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 Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
NO. R-III-1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT Xxxxxx Xxxxxxx & Co. Incorporated is the registered owner of
the interest evidenced by this Certificate in the Class R-III Certificates
issued by the Trust created pursuant to the Pooling and Servicing Agreement,
dated as specified above (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I Inc. (hereinafter called the "Depositor", which term includes
any successor entity under the Pooling and Servicing Agreement), the Trustee,
the 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 Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 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: AUGUST 3, 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 (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act _________________________
not as 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 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 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 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.
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23
PASS-THROUGH RATE: VARIABLE PER THE POOLING AND SERVICING AGREEMENT
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE: $32,276,000
DATE OF POOLING AND SERVICING AGREEMENT: AS OF AUGUST 1, 2006
CUT-OFF DATE: AUGUST 1, 2006
CLOSING DATE: AUGUST 3, 2006
FIRST DISTRIBUTION DATE: SEPTEMBER 12, 2006
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AS OF THE CLOSING DATE:
$32,276,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
CUSIP XX. 00000X XX 0
Xx. X-0
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
XXXXXX XXXXXXX CAPITAL I INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I Inc.
(hereinafter called the "Depositor," which term includes any successor entity
under the Pooling and Servicing Agreement), the Trustee, the 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 Certificates. The Certificates are
designated as the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 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 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: AUGUST 3, 2006
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:
------------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT ______________ Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship and Act __________________________
not as 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
August , 2006
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23
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
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23
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
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23
Re: Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23
DATE:
----------
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of August 1,
2006 by and among Xxxxxx Xxxxxxx Capital I 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: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August , 2006 (the "Settlement Date") of
$ . The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of August 1, 2006,
among Xxxxxx Xxxxxxx Capital I 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: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August , 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 August 1, 2006 (the "Pooling and Servicing Agreement"), among Xxxxxx
Xxxxxxx Capital I 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 August 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 Certificate
Yes No 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
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August , 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 August 1, 2006,
Xxxxxx Xxxxxxx Capital I 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 August 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: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August , 2006 (the "Settlement
Date") of $ . The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2006, among Xxxxxx Xxxxxxx Capital I 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 August 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: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August , 2006 (the "Settlement
Date") of $ . The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of August
1, 2006, among Xxxxxx Xxxxxxx Capital I 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 August 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 Certificate
Yes No 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 Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23, 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: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 August 1, 2006 (the "Pooling and
Servicing Agreement"), among Xxxxxx Xxxxxxx Capital I 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
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23, 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 G-1
FORM OF PRIMARY SERVICING AGREEMENT
(PRINCIPAL)
----------
PRIMARY SERVICING AGREEMENT
DATED AS OF AUGUST 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 AUGUST 1, 2006
BETWEEN
XXXXXX XXXXXXX CAPITAL I 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-TOP23
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
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
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
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
-ii-
This PRIMARY SERVICING AGREEMENT, dated and effective as of August 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, Xxxxxx Xxxxxxx Capital I 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 August 1, 2006, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2006-TOP23 (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 TOP23 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 TOP23 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.
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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
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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 TOP23 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.
"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
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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, 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 July 19, 2006 between Principal Commercial Funding II,
LLC, as Seller and the Master Servicer, as Purchaser.
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"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 Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23."
"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
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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.
"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
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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.
"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.
"TOP23 Trust": The trust established under the Pooling and Servicing
Agreement.
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"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
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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 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
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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:
(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
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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 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
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(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
September 2006.
(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):
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Month of Frequency Time of Required
Description of Initial of Delivery to the
Report Report Report Master Servicer
---------------------- ---------------- ----------- --------------------------------------------------
CMSA Property File October 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 October 2006 for Annually With respect to each calendar year, beginning in
Analysis Report, CMSA year-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 October 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 October 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 October 2006 Monthly 10th Business Day for prior month but in no event
Financial Status Report later than the Business Day prior to the Report
Date in such month
Quarterly Operating January 2007 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 September
Quarterly Financial only the 30, 2006).
File first three
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 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.
(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
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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 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.
(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.
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.
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
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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 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.
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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 1.02 of that certain
Indemnification Agreement, dated July 19, 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 (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
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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
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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.
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) 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
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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.
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
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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.
(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
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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 October
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.
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
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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 TOP23 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 TOP23 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
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"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 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;
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(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. 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:
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(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) 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
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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.]
(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.
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(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
(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
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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 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
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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.
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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.
SECTION 6.2 TERMINATION (a) 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.
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SECTION 6.3 POST-TERMINATION OBLIGATIONS
(a) 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.
(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
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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 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
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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 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).
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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 TOP23
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 shall be
valid and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
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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)
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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.
(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
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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 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
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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.
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 TOP23 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:
------------------------------------
Name:
Title:
PRINCIPAL GLOBAL INVESTORS, LLC
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULES
PRIMARY SERVICING
PROSPECTUS TAB FEE RATE
NUMBER LOAN NAME CUT-OFF DATE BALANCE (BASIS POINTS)
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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:
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 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% of any
either expressly as a easements contemplated in Loan additional fees or portions of fees
matter of right in favor of Documents; evaluation of alterations (including without limitation transfer
the Mortgagor or upon the under specified threshold; fees) payable to Master Servicer under
satisfaction of certain administer, monitor and release of Pooling and Servicing Agreement (i.e.
specified conditions reserve or escrow amounts in transfer fee). Other 20% of such
(including the exercise of accordance with reserve or escrow additional fees are payable to Master
any specified standard of agreements; approval of leases below Servicer. Special Servicer would
consent or judgment within threshold specified in Loan receive any portion of fees due it
such conditions subject to Documents; additional lien, monetary under the Pooling and Servicing
the terms of this encumbrance or mezzanine financing Agreement. Master Servicer may also
Agreement); or (b) seeks placed on Mortgaged Property that is collect its out-of-pocket expenses
the approval of the related specifically contemplated in Loan which it shall itemize in reasonable
Mortgagee under the related Documents under specified conditions; detail.(3)
Loan Documents for a Lease or process of defeasing a Mortgage
and/or the issuance of an Loan (except defeasance of a
SNDA for a Lease. 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 Post Closing Request (other Consent to easement not contemplated For all Mortgage Loans, other than A/B
Requests for all than Category 3 Request) is in Loan Documents; partial releases Mortgage Loans: Primary Servicer
Mortgage Loans (a) not specifically not specifically contemplated in Loan entitled to one hundred percent (100%)
(other than A/B authorized or is prohibited Documents; or subordinate or of administrative or processing fee.
Mortgage Loans) and or not addressed in the mezzanine financing not specifically Additional fees are payable to Master
Deemed Category 1 Loan Documents; and (b) not contemplated in Loan Documents. Servicer and/or Special Servicer as
Requests seeking approval of a Lease specified in Pooling and Servicing
requiring such approval of Agreement. Master Servicer may also
Mortgagee under the related collect its out-of-pocket expenses.(1)
Loan Documents or issuance
of an SNDA. For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
3 Category 3 Post Closing Requests to Changes to maturity date, interest Primary Servicer not entitled to
Requests Money Terms, Defaulted rate, principal balance, amortization fee. Master Servicer or Special
Mortgage Loans or Mortgage term, payment amount or frequency; or Servicer is entitled to fees as
Loans upon which a any actions to loan in default. provided in the Pooling and Servicing
Servicing Transfer Event Agreement.(1)
has occurred.
----------------
(3) 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.
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-TOP23
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 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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Notification of advance requirement or force placement of insurance 3 business days X
prior to advance being required
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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
8. Escrows
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 X
borrower 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, X
rent 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 Financial File in accordance with Section 2.1(c)(viii) of this Agreement. X X
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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
12. Borrower Inquiries/Performing Loans
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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 1 Requests and X
Deemed Category 1 Requests)
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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
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 2007
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 X
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 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-TOP23
--------------------------------------------------------------------------------
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 August 1, 2006 (the "Pooling and Servicing Agreement") and
a Primary Servicing Agreement dated as of August 1, 2006 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23, 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:
D-2
EXHIBIT D
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Principal Global Investors, LLC
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23
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__]
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 Xxxxx Fargo Bank, National
Association, as master servicer, and
______________, as Primary Servicer.
Master Servicer: Xxxxx Fargo Bank, National Association
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:
____/____/_____
[_] No
G-1
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.
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 Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
August 1, 2006, between Primary Servicer and Xxxxx Fargo Bank, National
Association, as master servicer (the "Master Servicer") relating to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP23.
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:
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
Page 1 of Appendix 2
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
Purchase price $
Buyer down payment $ (%)
Estimated closing date
1% loan fee split: Principal 40% - $
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)
2 of Appendix 2
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Property Financial Summary: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
New Environmental and Engineering Developments (if any) and Status of Issues
identified in Original Reports or Loan Documents as needing Remediation: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Escrow Status:
1. Explain status of all reserves
Property Management Summary:
1. Who is proposed property management firm
2. Background and Experience
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
(a) State recommendation for approval.
3 of Appendix 2
(b) Highlight strengths and weaknesses. How are weaknesses
mitigated? (bullet points are fine)
4 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:
-----------------------------------------
5 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
6 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)
5. 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:
(c) State recommendation for approval.
(d) 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:
-----------------------------------------
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):_____________________________________________
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___________________________________________________________________
E-2
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:
-------------------------------
E-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
E-4
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 Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23, 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
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP23, 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
Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23
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 August 1, 2006 (the "Pooling and Servicing
Agreement") among both of you, Xxxxxx Xxxxxxx Capital I 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
EXHIBIT J
LOANS AS TO WHICH EXCESS SERVICING FEES ARE PAID (HAS A SUBSERVICER FEE)
EXCESS
MORTGAGE MORTGAGE CUT-OFF DATE SERVICING
LOAN NO. LOAN SELLER PROPERTY NAME BALANCE FEE RATE
-------- ----------- ------------------------------------------------- ------------ ---------
74 MSMC Miramar Plaza $5,000,000 1.00
00 XXXX Xxxxx Xxxxxx Xxxxxxxx Xxxxx $4,250,000 1.00
000 XXXX Xxxxx Xxxxxx Ground Leases $2,800,000 1.00
000 XXX Xxxxxx Xxxxxxx Retail Building $2,495,354 2.00
132 WFB Security Public Storage - Pittsburg $2,476,120 4.00
135 WFB Walgreen's - Vero Beach $2,296,014 1.00
000 XXXX Xxxxxxx Xxxx Strip Center $2,208,564 1.00
000 XXX XX & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx $ 934,256 6.00
000 XXX XX & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx $ 934,256 6.00
000 XXX XX & Westside SS Portfolio - 000 Xxxxxxxxx Xxx $ 291,488 6.00
144 WFB 000 Xxxxx Xxx Industrial $2,096,635 2.00
146 WFB 0000-0000 Xxxxxxxxx Xxxxx $2,000,000 2.00
147 WFB Fullerton 14 Retail $2,000,000 2.00
000 XXX Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxx $1,642,553 4.00
000 XXX XxXxxxx - Xxxx Xxxxxx Commercial $1,490,000 10.00
158 WFB Danray Distribution Center $1,397,369 2.00
159 WFB Carpeteria - Goleta $1,395,166 10.00
162 WFB Montebello Retail Center $1,247,809 1.00
163 WFB Xxxxx Retail Center $1,198,023 11.00
164 WFB Security Public Storage - Riverbank $1,169,387 8.00
165 WFB Advance Auto Parts - Xxxxxxxx $1,162,967 9.00
166 WFB Advance Auto - Austin $1,065,169 9.00
167 WFB Carpeteria Xxxxxxx $1,047,382 14.00
168 WFB 000 Xxxxxxx Xxxxxx Xxxxx $1,000,000 10.00
169 WFB 0000-0000 X. Xxxxxxxx Xxxx Xxxx. $ 996,290 12.00
EXHIBIT K-1
FORM OF PURCHASE AGREEMENT I
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 19, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE ............................................. K-1-3
2. CONVEYANCE OF MORTGAGE LOANS ...................................... K-1-3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW ............ K-1-10
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER ......................................................... K-1-12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER ............................................................ K-1-15
6. CLOSING ........................................................... K-1-20
7. CLOSING DOCUMENTS ................................................. K-1-21
8. COSTS ............................................................. K-1-23
9. NOTICES ........................................................... K-1-23
10. SEVERABILITY OF PROVISIONS ........................................ K-1-24
11. FURTHER ASSURANCES ................................................ K-1-24
12. SURVIVAL .......................................................... K-1-24
13. GOVERNING LAW ..................................................... K-1-24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT ...................... K-1-24
15. MISCELLANEOUS ..................................................... K-1-25
16. ENTIRE AGREEMENT .................................................. K-1-25
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) ...................................................... K-1-17
Agreement ............................................................. K-1-2
Certificate Purchase Agreement ........................................ K-1-2
Certificates .......................................................... K-1-2
Closing Date .......................................................... K-1-3
Collateral Information ................................................ K-1-10
Crossed Mortgage Loans ................................................ K-1-17
Defective Mortgage Loan ............................................... K-1-17
Final Judicial Determination .......................................... K-1-19
Indemnification Agreement ............................................. K-1-13
Initial Purchasers .................................................... K-1-2
Master Servicer ....................................................... K-1-2
Material Breach ....................................................... K-1-15
Material Document Defect .............................................. K-1-15
Memorandum ............................................................ K-1-2
MERS .................................................................. K-1-5
Mortgage File ......................................................... K-1-4
Mortgage Loan Schedule ................................................ K-1-3
Mortgage Loans ........................................................ K-1-2
Officer's Certificate ................................................. K-1-7
Other Mortgage Loans .................................................. K-1-2
Pooling and Servicing Agreement ....................................... K-1-2
Private Certificates .................................................. K-1-2
Prospectus Supplement ................................................. K-1-2
Public Certificates ................................................... K-1-2
Purchaser ............................................................. K-1-2
Repurchased Loan ...................................................... K-1-17
Seller ................................................................ K-1-2
Special Servicer ...................................................... K-1-2
Trust ................................................................. K-1-2
Trustee ............................................................... K-1-2
Underwriters .......................................................... K-1-2
Underwriting Agreement ................................................ K-1-2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(BEAR XXXXXXX COMMERCIAL MORTGAGE, INC. LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 19, 2006,
between Bear Xxxxxxx Commercial Mortgage, Inc. ("Seller") and Xxxxxx Xxxxxxx
Capital I 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 August 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 July 19, 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 July 19, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by a
Prospectus Supplement dated July 19, 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 July 19, 2006 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
K-1-2
1. AGREEMENT TO PURCHASE.
1.1 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 August 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 $440,961,906. The sale of the
Mortgage Loans shall take place on August 3, 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.
1.2 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).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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
August 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 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
K-1-3
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.)
2.2 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:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23, 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;
2.2.2 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;
2.2.3 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
K-1-4
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;
2.2.4 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 Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23,"
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;
2.2.5 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;
2.2.6 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 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23," which assignment may be effected in
K-1-5
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;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 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;
2.2.9 (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;
2.2.10 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;
2.2.11 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;
2.2.12 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
K-1-6
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;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 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;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 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.
2.3 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
K-1-7
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.
2.4 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 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).
2.5 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.
2.6 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.
2.7 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.
2.8 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
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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.
2.9 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.
2.10 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:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 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:
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
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C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.11 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.
2.12 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,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 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.
2.14 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.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 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
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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.
3.2 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.
3.3 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.
3.4 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 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
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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.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 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:
4.1.1 Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New 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.
4.1.2 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. 4.1.3 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.
4.1.4 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
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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, 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.
4.1.5 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.
4.1.6 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.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated July 19, 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.
4.1.8 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.
4.1.9 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 periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
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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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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.
4.2.3 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.
4.2.4 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.
4.2.5 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.
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4.2.6 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.
4.2.7 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.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 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).
5.2 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
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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 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.
5.3 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.
5.4 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
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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).
5.5 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
K-1-17
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
5.6 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.
5.7 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.
5.8 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.
5.9 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
K-1-18
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.
5.10 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.
5.11 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).
5.12 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 obligation with respect to the breach discussed in the previous
sentence.
5.13 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).
K-1-19
5.14 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.
6. CLOSING.
6.1 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:
6.1.1 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).
6.1.2 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.
6.1.3 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.
6.1.4 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.
6.1.5 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.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 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.
6.1.8 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.
K-1-20
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 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.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 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.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 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.
7.5 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.
7.6 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):
7.6.1 Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 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.
7.6.4 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,
K-1-21
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.
7.6.5 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.
7.6.6 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.
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.
7.7 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.
7.8 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.
K-1-22
7.9 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.
7.10 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.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 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.
7.13 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.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. 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.
9. 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 Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to Xxxxxx Xxxxxxx Capital
I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Legal Department, Attention:
Xxxxx X. Xxx, Esq. (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).
K-1-23
10. 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.
11. 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.
12. 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.
13. 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 OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. 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.
K-1-24
15. 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.
16. 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.
K-1-25
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:
------------------------------
XXXXXX XXXXXXX CAPITAL I 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. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent 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
2-1
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.
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 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
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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 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.
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(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 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.
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(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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 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
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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 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
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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;
(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;
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(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 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)).
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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 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. Section 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.
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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.
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.
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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 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
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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 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.
2-12
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: Xxxxxx Xxxxxxx Capital I 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 July 19, 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 19th day of July 2006.
SELLER: BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-2
FORM OF PURCHASE AGREEMENT II
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 19, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE............................................. K-2-3
2. CONVEYANCE OF MORTGAGE LOANS...................................... K-2-3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............ K-2-11
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................... K-2-12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER.................................................... K-2-16
6. CLOSING........................................................... K-2-21
7. CLOSING DOCUMENTS................................................. K-2-22
8. COSTS............................................................. K-2-25
9. NOTICES........................................................... K-2-25
10. SEVERABILITY OF PROVISIONS........................................ K-2-25
11. FURTHER ASSURANCES................................................ K-2-25
12. SURVIVAL.......................................................... K-2-25
13. GOVERNING LAW..................................................... K-2-26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT...................... K-2-26
15. MISCELLANEOUS..................................................... K-2-26
16. ENTIRE AGREEMENT.................................................. K-2-26
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)....................................................... K-2-18
Agreement.............................................................. K-2-2
Certificate Purchase Agreement......................................... K-2-2
Certificates........................................................... K-2-2
Closing Date........................................................... K-2-3
Collateral Information................................................. K-2-11
Crossed Mortgage Loans................................................. K-2-18
Defective Mortgage Loan................................................ K-2-18
Final Judicial Determination........................................... K-2-20
Indemnification Agreement.............................................. K-2-14
Initial Purchasers..................................................... K-2-2
Master Servicer........................................................ K-2-2
Material Breach........................................................ K-2-16
Material Document Defect............................................... K-2-16
Memorandum............................................................. K-2-2
MERS................................................................... K-2-5
Mortgage File.......................................................... K-2-4
Mortgage Loan Schedule................................................. K-2-3
Mortgage Loans......................................................... K-2-2
Officer's Certificate.................................................. K-2-8
Other Mortgage Loans................................................... K-2-2
Pooling and Servicing Agreement........................................ K-2-2
Private Certificates................................................... K-2-2
Prospectus Supplement.................................................. K-2-2
Public Certificates.................................................... K-2-2
Purchaser.............................................................. K-2-2
Repurchased Loan....................................................... K-2-18
Seller................................................................. K-2-2
Special Servicer....................................................... K-2-2
Trust.................................................................. K-2-2
Trustee................................................................ K-2-2
Underwriters........................................................... K-2-2
Underwriting Agreement................................................. K-2-2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(XXXXX LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 19, 2006,
between Xxxxx Fargo Bank, National Association ("Seller") and Xxxxxx Xxxxxxx
Capital I 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 August 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 July 19, 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 July 19, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by a
Prospectus Supplement dated July 19, 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 July 19, 2006 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 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
K-2-2
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 August 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 $392,652,000. The sale of the Mortgage Loans shall take place on
August 3, 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.
1.2 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).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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
August 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 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
K-2-3
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.)
2.2 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:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23, 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;
2.2.2 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;
2.2.3 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
K-2-4
recorded modification, consolidation or extension agreement, and the originals
of all assumption agreements, if any;
2.2.4 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 Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23,"
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;
2.2.5 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;
2.2.6 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 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23," 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
K-2-5
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;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 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;
2.2.9 (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;
2.2.10 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;
2.2.11 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;
2.2.12 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,
K-2-6
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;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 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;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 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.
2.3 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.
K-2-7
2.4 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 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).
2.5 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.
2.6 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.
2.7 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.
2.8 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
K-2-8
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.
2.9 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.
2.10 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:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 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:
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.
K-2-9
2.11 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.
2.12 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,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 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.
2.14 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.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 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 below), or to
repurchase or replace the defective Mortgage Loans pursuant to Section 5 hereof.
K-2-10
3.2 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.
3.3 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.
3.4 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 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
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disclosure immediately, then Purchaser shall be permitted to make such
disclosure without prior review by Seller.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 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:
4.1.1 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
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
4.1.2 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.
4.1.3 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.
4.1.4 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
K-2-12
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, 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.
4.1.5 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.
4.1.6 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.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated July 19, 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.
4.1.8 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.
4.1.9 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 periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
K-2-13
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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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.
4.2.3 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.
4.2.4 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.
4.2.5 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.
K-2-14
4.2.6 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.
4.2.7 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.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 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).
5.2 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
K-2-15
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 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.
5.3 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.
5.4 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
K-2-16
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).
5.5 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
K-2-17
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
5.6 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.
5.7 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.
5.8 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.
5.9 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
K-2-18
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.
5.10 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.
5.11 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).
5.12 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 obligation with respect to the breach discussed in the previous
sentence.
5.13 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).
K-2-19
5.14 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.
6. CLOSING.
6.1 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:
6.1.1 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).
6.1.2 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.
6.1.3 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.
6.1.4 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.
6.1.5 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.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 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.
6.1.8 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.
K-2-20
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 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.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 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.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 A certificate of existence for Seller from the Comptroller of the Currency
dated not earlier than 30 days prior to the Closing Date.
7.5 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.
7.6 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):
7.6.1 Seller is validly existing under United States law and has full
corporate power and authority to enter into and perform its obligations under
this Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 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.
7.6.4 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,
K-2-21
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.
7.6.5 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.
7.6.6 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.
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.
7.7 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.
7.8 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.
K-2-22
7.9 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.
7.10 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.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 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.
7.13 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.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. 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.
9. 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 Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to Xxxxxx Xxxxxxx Capital
I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Legal Department, Attention:
Xxxxx X. Xxx, Esq. (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).
K-2-23
10. 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.
11. 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.
12. 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.
13. 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 OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. 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.
K-2-24
15. 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.
16. 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.
K-2-25
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:
-----------------------------
XXXXXX XXXXXXX CAPITAL I 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. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent 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
2-1
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.
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 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
2-2
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 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.
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(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 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.
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(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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 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
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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 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
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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;
(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;
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(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 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)).
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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 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. Section 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.
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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.
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.
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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 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
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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 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.
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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: Xxxxxx Xxxxxxx Capital I 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 July 19, 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 19th day of July, 2006.
SELLER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-3
FORM OF PURCHASE AGREEMENT III
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
PRINCIPAL COMMERCIAL FUNDING II, LLC
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 19, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE............................................ K-3-3
2. CONVEYANCE OF MORTGAGE LOANS..................................... K-3-3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW........... K-3-10
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER........... K-3-12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE
BY SELLER........................................................ K-3-15
6. CLOSING.......................................................... K-3-20
7. CLOSING DOCUMENTS................................................ K-3-21
8. COSTS............................................................ K-3-23
9. NOTICES.......................................................... K-3-24
10. SEVERABILITY OF PROVISIONS....................................... K-3-24
11. FURTHER ASSURANCES............................................... K-3-24
12. SURVIVAL......................................................... K-3-24
13. GOVERNING LAW.................................................... K-3-24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT..................... K-3-25
15. MISCELLANEOUS.................................................... K-3-25
16. ENTIRE AGREEMENT................................................. K-3-25
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)....................................................... K-3-17
Agreement.............................................................. K-3-2
Certificate Purchase Agreement......................................... K-3-2
Certificates........................................................... K-3-2
Closing Date........................................................... K-3-3
Collateral Information................................................. K-3-10
Crossed Mortgage Loans................................................. K-3-17
Defective Mortgage Loan................................................ K-3-17
Final Judicial Determination........................................... K-3-19
Indemnification Agreement.............................................. K-3-13
Initial Purchasers..................................................... K-3-2
Master Servicer........................................................ K-3-2
Material Breach........................................................ K-3-16
Material Document Defect............................................... K-3-15
Memorandum............................................................. K-3-2
MERS .................................................................. K-3-5
Mortgage File.......................................................... K-3-4
Mortgage Loan Schedule................................................. K-3-3
Mortgage Loans......................................................... K-3-2
Officer's Certificate.................................................. K-3-7
Other Mortgage Loans................................................... K-3-2
Pooling and Servicing Agreement........................................ K-3-2
Private Certificates................................................... K-3-2
Prospectus Supplement.................................................. K-3-2
Public Certificates.................................................... K-3-2
Purchaser.............................................................. K-3-2
Repurchased Loan....................................................... K-3-17
Seller................................................................. K-3-2
Special Servicer....................................................... K-3-2
Trust.................................................................. K-3-2
Trustee................................................................ K-3-2
Underwriters........................................................... K-3-2
Underwriting Agreement................................................. K-3-2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(PRINCIPAL LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 19, 2006,
between Principal Commercial Funding II, LLC ("Seller") and Xxxxxx Xxxxxxx
Capital I 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 August 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 Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (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 July 19, 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 July 19, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by a
Prospectus Supplement dated July 19, 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 July 19, 2006 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
K-3-2
1.1 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 August 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 $393,404,396. The sale of the
Mortgage Loans shall take place on August 3, 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.
1.2 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).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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
August 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 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
K-3-3
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.)
2.2 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:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23, 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;
2.2.2 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;
2.2.3 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
K-3-4
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;
2.2.4 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 Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23,"
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;
2.2.5 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;
2.2.6 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 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23," 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
K-3-5
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;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 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;
2.2.9 (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;
2.2.10 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;
2.2.11 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;
2.2.12 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
K-3-6
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;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 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;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 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.
2.3 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
K-3-7
been transferred from Seller to Purchaser and from Purchaser to the Trustee on
behalf of the Certificateholders.
2.4 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 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).
2.5 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.
2.6 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.
2.7 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.
2.8 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
K-3-8
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.
2.9 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.
2.10 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:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 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:
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
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C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.11 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.
2.12 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,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 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.
2.14 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.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 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
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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.
3.2 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.
3.3 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.
3.4 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 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
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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.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 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:
4.1.1 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.
4.1.2 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.
4.1.3 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.
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4.1.4 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, 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.
4.1.5 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.
4.1.6 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.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated July 19, 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.
4.1.8 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.
4.1.9 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
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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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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.
4.2.3 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.
4.2.4 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.
4.2.5 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
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Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 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.
4.2.7 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.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 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).
5.2 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
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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 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.
5.3 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.
5.4 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
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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).
5.5 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
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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.
5.6 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.
5.7 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.
5.8 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.
5.9 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
K-3-18
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.
5.10 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.
5.11 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).
5.12 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 obligation with respect to the breach discussed in the previous
sentence.
5.13 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
K-3-19
notice to Seller in the event that any Mortgage Loan becomes a Specially
Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.14 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.
6. CLOSING.
6.1 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:
6.1.1 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).
6.1.2 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.
6.1.3 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.
6.1.4 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.
6.1.5 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.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 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.
K-3-20
6.1.8 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.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 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.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 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.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 A certificate of existence for Seller from the Secretary of State of
Delaware dated not earlier than 30 days prior to the Closing Date.
7.5 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.
7.6 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):
7.6.1 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.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
K-3-21
7.6.3 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.
7.6.4 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.
7.6.5 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.
7.6.6 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.
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.
K-3-22
7.7 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.
7.8 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.
7.9 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.
7.10 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.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 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.
7.13 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.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. 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.
K-3-23
9. 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 Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to Xxxxxx Xxxxxxx Capital
I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Legal Department, Attention:
Xxxxx X. Xxx, Esq. (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).
10. 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.
11. 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.
12. 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.
13. 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 OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
K-3-24
14. 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.
15. 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.
16. 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.
K-3-25
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:
-----------------------------
XXXXXX XXXXXXX CAPITAL I 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. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent 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
2-1
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.
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 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
2-2
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 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.
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(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 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.
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(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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 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
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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 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.
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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;
(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;
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(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 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)).
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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 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. Section 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.
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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.
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.
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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 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
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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 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.
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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
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EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Principal Commercial Funding II, LLC
Purchaser: Xxxxxx Xxxxxxx Capital I 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 July 19, 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 19th day of July, 2006.
SELLER: PRINCIPAL COMMERCIAL FUNDING II, LLC
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
XXXXXX XXXXXXX CAPITAL I INC.
as Purchaser
Dated as of July 19, 2006
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE............................................ K-4-3
2. CONVEYANCE OF MORTGAGE LOANS..................................... K-4-3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW........... K-4-10
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER........... K-4-12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER........................................................... K-4-15
6. CLOSING.......................................................... K-4-20
7. CLOSING DOCUMENTS................................................ K-4-21
8. COSTS............................................................ K-4-23
9. NOTICES.......................................................... K-4-23
10. SEVERABILITY OF PROVISIONS....................................... K-4-24
11. FURTHER ASSURANCES............................................... K-4-24
12. SURVIVAL......................................................... K-4-24
13. GOVERNING LAW.................................................... K-4-24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT..................... K-4-24
15. MISCELLANEOUS.................................................... K-4-25
16. ENTIRE AGREEMENT................................................. K-4-25
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)....................................................... K-4-17
Agreement.............................................................. K-4-2
Certificate Purchase Agreement......................................... K-4-2
Certificates........................................................... K-4-2
Closing Date........................................................... K-4-3
Collateral Information................................................. K-4-10
Crossed Mortgage Loans................................................. K-4-17
Defective Mortgage Loan................................................ K-4-17
Final Judicial Determination........................................... K-4-19
Indemnification Agreement.............................................. K-4-13
Initial Purchasers..................................................... K-4-2
Master Servicer........................................................ K-4-2
Material Breach........................................................ K-4-15
Material Document Defect............................................... K-4-15
Memorandum............................................................. K-4-2
MERS................................................................... K-4-5
Mortgage File.......................................................... K-4-4
Mortgage Loan Schedule................................................. K-4-3
Mortgage Loans......................................................... K-4-2
Officer's Certificate.................................................. K-4-7
Other Mortgage Loans................................................... K-4-2
Pooling and Servicing Agreement........................................ K-4-2
Private Certificates................................................... K-4-2
Prospectus Supplement.................................................. K-4-2
Public Certificates.................................................... K-4-2
Purchaser.............................................................. K-4-2
Repurchased Loan....................................................... K-4-17
Seller................................................................. K-4-2
Special Servicer....................................................... K-4-2
Trust.................................................................. K-4-2
Trustee................................................................ K-4-2
Underwriters........................................................... K-4-2
Underwriting Agreement................................................. K-4-2
i
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 19,
2006, between Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Seller") and Xxxxxx Xxxxxxx
Capital I 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 August 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 Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23 (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 July 19, 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 July 19, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated March 14, 2006, as supplemented by a
Prospectus Supplement dated July 19, 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 July 19, 2006 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
K-4-2
1.1 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 August 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 $386,821,891. The sale of the
Mortgage Loans shall take place on August 3, 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.
1.2 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).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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
August 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 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
K-4-3
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.)
2.2 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:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23, 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;
2.2.2 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;
2.2.3 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
K-4-4
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;
2.2.4 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 Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23,"
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;
2.2.5 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;
2.2.6 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 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
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23," 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
K-4-5
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;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 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;
2.2.9 (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;
2.2.10 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;
2.2.11 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;
2.2.12 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
K-4-6
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;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 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;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 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.
2.3 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
K-4-7
been transferred from Seller to Purchaser and from Purchaser to the Trustee on
behalf of the Certificateholders.
2.4 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 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).
2.5 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.
2.6 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.
2.7 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.
2.8 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
K-4-8
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.
2.9 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.
2.10 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:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 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:
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
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C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.11 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.
2.12 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,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 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.
2.14 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.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 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
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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.
3.2 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.
3.3 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.
3.4 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 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
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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.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.
4.1 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:
4.1.1 Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New 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.
4.1.2 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. 4.1.3 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.
4.1.4 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
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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, 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.
4.1.5 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.
4.1.6 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.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated July 19, 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.
4.1.8 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.
4.1.9 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 periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
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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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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.
4.2.3 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.
4.2.4 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.
4.2.5 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.
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4.2.6 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.
4.2.7 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.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 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).
5.2 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
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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 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.
5.3 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.
5.4 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
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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).
5.5 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
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paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
5.6 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.
5.7 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.
5.8 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.
5.9 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
K-4-18
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.
5.10 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.
5.11 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).
5.12 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 obligation with respect to the breach discussed in the previous
sentence.
5.13 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).
K-4-19
5.14 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.
6. CLOSING.
6.1 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:
6.1.1 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).
6.1.2 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.
6.1.3 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.
6.1.4 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.
6.1.5 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.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 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.
6.1.8 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.
K-4-20
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 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.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 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.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 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.
7.5 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.
7.6 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):
7.6.1 Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 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.
7.6.4 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,
K-4-21
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.
7.6.5 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.
7.6.6 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.
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.
7.7 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.
7.8 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.
K-4-22
7.9 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.
7.10 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.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 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.
7.13 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.
7.14 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
8. 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.
9. 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 Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Friend, with a copy to Xxxxxx Xxxxxxx Capital
I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Legal Department, Attention:
Xxxxx X. Xxx, Esq. (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: Xxxxxxx Deutsch (or to such other address as Seller may designate in
writing) with a copy to the attention of Xxxxx X. Xxx, Esq. at 0000 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
K-4-23
10. 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.
11. 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.
12. 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.
13. 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 OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. 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.
K-4-24
15. 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.
16. 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.
K-4-25
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:
-----------------------------
XXXXXX XXXXXXX CAPITAL I 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. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent 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
2-1
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.
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 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
2-2
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 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.
2-3
(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 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.
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(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. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 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
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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 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
2-6
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;
(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;
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(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 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)).
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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 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. Section 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.
2-9
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.
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.
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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 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
2-11
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 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.
2-12
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
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Xxxxxx Xxxxxxx Capital I 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 July 19, 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 19th day of July, 2006.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
PURCHASER: XXXXXX XXXXXXX CAPITAL I 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-TOP23
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 Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of August 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 Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series
2006-TOP23
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 Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP23 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of August 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 Xxxxxx
Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2006-TOP23
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: $
16.1 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:
(a) State recommendation for approval.
(b) 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 Sale Agreement
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)
6. 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:
(c) State recommendation for approval.
(d) 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]
EXHIBIT X
[UNRESTRICTED SERVICER REPORTS]
EXHIBIT Y
[Investor Certificate]
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23
In accordance with the Pooling and Servicing Agreement, dated as of August
1, 2006 (the "Agreement"), by and among Xxxxxx Xxxxxxx Capital I 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:
16.2 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;
16.3 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:
16.4 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.
16.5 The defeasance was consummated on __________, 20__.
16.6 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
16.7 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.
16.8 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.
16.9 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.
16.10 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").
16.11 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.
16.12 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.
16.13 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.
16.14 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").
16.15 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.
16.16 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.
16.17 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.
16.18 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.
16.19 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.
16.20 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 AUGUST 1, 2006
BETWEEN
XXXXXX XXXXXXX CAPITAL I INC.
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS MASTER SERVICER,
ARCAP SERVICING, INC.
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION
AS TRUSTEE
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT, CERTIFICATE REGISGTRAR AND AUTHENTICATING AGENT
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-TOP23
TABLE OF CONTENTS
PAGE
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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
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
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TABLE OF CONTENTS
(continued)
PAGE
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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, ARCap Servicing, Inc., as
special servicer, Xxxxx Fargo Bank, National Association, as Paying Agent,
Certificate Regisgtrar and Authenticating Agent, and LaSalle Bank National
Association, as Trustee and Custodian, have entered into a Pooling and Servicing
Agreement, dated as of August 1, 2006, relating to the Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP23 (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:
17. 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 TOP23 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 TOP23 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.
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"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.
"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.
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"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 TOP23 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.
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"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, 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
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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 "Xxxxx Fargo Bank, National Association, as Primary
Servicer for _______________________________________, as Master Servicer for
LaSalle Bank National Association, as Trustee and Custodian for the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP23."
"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.
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"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.
"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
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(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.
"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.
"TOP23 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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18. PRIMARY SERVICING
18.1 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:
18.2 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.
18.3 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.
18.4 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):
18.5 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 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.
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18.6 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.
18.7 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.
18.8 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:
18.9 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
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provide Master Servicer with immediate notice of Primary Servicer becoming aware
that any Principal Prepayment is to be made on a Determination Date);
18.10 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;
18.11 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
18.12 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.
18.13 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.
18.14 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.
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18.15 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,
August 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.
18.16 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:
18.17 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.
18.18 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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Frequency
Month of Initial of
Description of Report Report Report Time of Required Delivery to the 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-end Annually With respect to each calendar year, beginning in
Analysis Report, CMSA 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 Report later than the Business Day prior to the 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
18.19 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.
18.20 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 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
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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.
18.21 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.
18.22 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.
18.23 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.
18.24 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.
18.25 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.
18.26 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 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
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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).
18.27 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 ARCap Naming Convention for Electronic
File Delivery.
A. 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.
18.28 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
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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.
18.29 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.
18.30 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.
18.31 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.
18.32 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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18.33 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
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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.
18.34 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.
18.34.1 (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.
19. DOCUMENTS AND OTHER MATTERS
19.1 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.
19.2 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,
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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.
20. MASTER SERVICER ASSISTANCE
20.1 Master Servicer Assistance
20.1.1 (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.
20.1.2 (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.
20.2 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
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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).
21. ADDITIONAL PRIMARY SERVICER COVENANTS
21.1 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 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.
21.2 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.
21.3 Fidelity Bond and Errors and Omissions Insurance Policy.
21.4 (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).
21.5 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
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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.
21.6 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.
21.7 No Advancing Under no circumstance shall the Primary Servicer make or have
an obligation to make any Advances.
21.8 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.
21.9 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.
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21.10 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.
21.11 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.
21.12 Prepayment Interest Shortfalls and Excesses.
21.13 (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.
21.14 [Reserved].
21.15 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).
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21.16 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.
21.17 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 August 306 (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.
21.18 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
TOP23 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
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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 TOP23 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 13.9 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
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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 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;
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(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 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
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(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.
(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
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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.
(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.
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(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 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
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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.]
(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.
22. PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION OBLIGATIONS
22.1 Primary Servicer Default Each of the following events shall constitute a
"Primary Servicer Default" hereunder:
22.2 any failure by the Primary Servicer to remit to the Master Servicer when
due any amount required to be remitted under this Agreement; or
22.3 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
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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
22.4 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
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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
22.5 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
22.6 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
22.7 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
22.8 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
22.9 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
22.10 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
22.11 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
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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.
22.12 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.
22.14 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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22.15 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.
22.16 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.
22.18 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.
22.19 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.
22.20 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.
22.21 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.
22.22 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
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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.
22.23 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.
22.24 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.
23. 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
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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.
24. 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.
25. INDEMNIFICATION Primary Servicer's Indemnity
25.2 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
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
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(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.
25.3 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.
25.4 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 TOP23 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.
26. MISCELLANEOUS
26.1 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 shall be valid and
enforceable and have full force and effect as if the invalid or unenforceable
part had not been included.
26.2 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.
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26.3 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.
26.4 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.
26.5 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:
26.6 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.
26.7 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.
26.8 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.
26.9 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
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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.
26.10 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.
26.11 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.
26.12 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.
26.13 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 Servicer to perform a task or duty, the details and
obligations of which are (a) set forth in this Agreement and (b)(i) are
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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.
26.14 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.
26.15 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.
26.16 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.
26.17 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);
o If to the Master Servicer: As set forth in Section 13.5 of the
Pooling and Servicing Agreement
o If to the Primary Servicer: ___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
Telephone No.: ____________________
Facsimile No.: ____________________
26.18 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
-40-
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.
26.19 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.
26.20 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 TOP23 Trust are
intended third-party beneficiaries of Section 5.13.
[END OF PAGE]
-41-
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 CUT-OFF DATE
NUMBER LOAN NAME BALANCE
------ --------- ------------
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
Category When Applicable Examples Allocation of Fees
-------------------- ------------------------- ------------------------------ ------------------------------
1 Category 1 Post Closing Request is Transfer rights contemplated Primary Servicer collects
Requests (other than either (a) specifically in Loan Documents (including entire administrative or
Deemed Category 1 authorized in the related without limitation assignment processing fee (including
Requests) Loan Documents (as and assumption rights); without limitation defeasance
defined in Exhibit partial releases contemplated fees), legal fees and
B-2(c)(A.1(b)), either in Loan Documents; easements out-of-pocket expenses and 80%
expressly as a matter of contemplated in Loan of any additional fees or
right in favor of the Documents; evaluation of portions of fees (including
Mortgagor or upon the alterations under specified without limitation transfer
satisfaction of certain threshold; administer, monitor fees) payable to Master
specified conditions and release of reserve or Servicer under Pooling and
(including the exercise escrow amounts in accordance Servicing Agreement (i.e.
of any specified standard with reserve or escrow transfer fee). Other 20% of
of consent or judgment agreements; approval of leases such additional fees are
within such conditions below threshold specified in payable to Master Servicer.
subject to the terms of Loan Documents; additional Special Servicer would receive
this Agreement); or (b) lien, monetary encumbrance or any portion of fees due it
seeks the approval of the mezzanine financing placed on under the Pooling and
related Mortgagee under Mortgaged Property that is Servicing Agreement. Master
the related Loan specifically contemplated in Servicer may also collect its
Documents for a Lease Loan Documents under specified out-of-pocket expenses which
and/or the issuance of an conditions; or process of it shall itemize in reasonable
SNDA for a Lease. defeasing a Mortgage Loan detail.(5)
(except defeasance of a
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 Post Closing Request Consent to easement not For all Mortgage Loans, other
Requests for all (other than Category 3 contemplated in Loan than A/B Mortgage Loans:
Mortgage Loans Request) is (a) not Documents; partial releases Primary Servicer entitled to
(other than A/B specifically authorized not specifically contemplated one hundred percent (100%) of
Mortgage Loans) and or is prohibited or not in Loan Documents; or administrative or processing
Deemed Category 1 addressed in the Loan subordinate or mezzanine fee. Additional fees are
Requests Documents; and (b) not financing not specifically payable to Master Servicer
seeking approval of a contemplated in Loan and/or Special Servicer as
Lease requiring such Documents. specified in Pooling and
approval of Mortgagee Servicing Agreement. Master
under the related Loan Servicer may also collect its
Documents or issuance of out-of-pocket expenses.(1)
an SNDA.
For all A/B Mortgage Loans:
Same allocation of fees as
Category 1 Requests.
3 Category 3 Post Closing Requests to Changes to maturity date, Primary Servicer not entitled
Requests Money Terms, Defaulted interest rate, principal to fee. Master Servicer or
Mortgage Loans or balance, amortization term, Special Servicer is entitled
Mortgage Loans upon which payment amount or frequency; to fees as provided in the
a Servicing Transfer or any actions to loan in Pooling and Servicing
Event has occurred. default. Agreement.(1)
----------
(5) 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.
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:
(a) 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:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(b) Category 2 Requests (other than Deemed Category 1 Requests):
(i) 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:
(6) 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.
(7) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(c) Category 3 Requests:
(i) 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.
(ii) 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.
(d) 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.
(e) 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.
(f) 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-TOP23
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
-------- -------- -------- -------
24. 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
25. 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
26. 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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Notification of advance requirement or force placement of insurance 3 business days X
prior to advance being required
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
27. 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
28. 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
29. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
30. 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 X
to the related maturity date
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
31. Escrows
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income required X
Prepare annual escrow analysis X
32. 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 X
(5) Business Days
33. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating statements, budgets, rent rolls and X
borrower financial statements, as applicable.
Deliver Operating Statement Analysis Report, CMSA Financial File and NOI X
Adjustment Worksheet in accordance with Section 2.1(c)(viii) of this
Agreement.
Deliver one (1) copy of quarterly and annual operating statements, budgets, X
rent 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 X X
Quarterly 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
34. Advancing
Determination of Non-Recoverability X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
35. Borrower Inquiries/Performing Loans
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
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 1 Requests and X
Deemed Category 1 Requests)
Approval of modification and extensions up to 60 days (Category 2 Request) X
Consent to modification and waivers and other consents (not otherwise X
provided in 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)
36. 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 X
Quarterly Servicing Accounts Reconciliation Certification in the form of
Exhibit D
37. 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
38. Property Annual Inspections
Conduct site inspection per Pooling and Servicing Agreement requirement X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Provide 3 copies of site inspection reports to the Master Servicer within X
30 days of inspection but not later than December 15 of each year
beginning in 2006
39. Preparation of servicing transfer letters X
40. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Master Servicer by January 31
of each year
41. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer X
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
42. Provide annual statement of compliance at the times and in the manner set X
forth in Section 5.13(c) of this Primary Servicing Agreement
43. Provide either (a) a report regarding Primary Servicer's assessment of X
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.
44. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and in the X
manner set forth in Section 5.13(c)(v) of this Primary Servicing Agreement
45. 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)
46. 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-TOP23
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 August 1, 2006 (the "Pooling and Servicing Agreement") and
a Primary Servicing Agreement dated as of August 1, 2006 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23, 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:
D-2
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-TOP23
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:
____/____/______
[_] No
G-1
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.
7. Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
8. An Executed Certificate substantially in the form attached hereto at
Exhibit A.
9. (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.
10. 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-TOP23.
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: $
26.21 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:
13. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
14. Discuss proposed Mortgagor entity and ownership structure
Page 1 of Appendix 2
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
15. How will title be held
16. Source of cash for down payment
17. 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: Primary Servicer 40% - $
_____, 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:
15. 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.
16. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
17. 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
18. 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);
19. Explain results of credit checks, legal searches and banking credit
references (two required)
2 of Appendix 2
20. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
21. 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)
3. 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)
5. Describe any material issues requiring remediation contained in original
reports
6. Describe current status of issue and remediation
Escrow Status:
3. Explain status of all reserves
Property Management Summary:
5. Who is proposed property management firm
6. Background and Experience
Collateral Valuation:
5. Discuss the original appraisal
E. Who prepared
F. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
6. Comparison of the following (original to actual property):
I. Vacancy
J. Rents
K. Taxes
L. 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:
(a) State recommendation for approval.
3 of Appendix 2
(b) Highlight strengths and weaknesses. How are weaknesses
mitigated? (bullet points are fine)
4 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:
----------------------------------
5 of Appendix 2
Schedule of Exhibits to Assumption Submission
31. Financial statements of purchasing entity and any guarantors (audited, if
available)
32. Financial statement of selling entity only if available
33. Bank and /or credit references for transferee
34. Credit report for principal(s) of the proposed borrowing entity.
35. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
36. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
37. Most recent Property Inspection report
38. Original Asset Summary for Mortgaged Property
39. Purchase and Sale Agreement
40. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
41. Proposed property management agreement
42. Description and source of equity being used for the purchase, if available
43. Most recent Rent Roll
44. Copy of Promissory Note, Mortgage and any Loan Agreement
45. Other items as required by the description set forth above
6 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:
17. 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
18. State amount and purpose of Lien/Financing
19. Interest Rate
20. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
21. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
22. Collateral pledged or mortgaged as security:
23. 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
24. 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)
11. 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:
3. Explain status of all Reserves
Collateral Valuation:
5. Discuss the original appraisal
E. Who prepared
F. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
6. Comparison of the following (original to actual property):
I. Vacancy
J. Rents
K. Taxes
L. 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:
(c) State recommendation for approval.
(d) 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
17. Most recent Income & Expense Statement for property and operating statement
review
18. Original Asset Summary for Mortgaged Property
19. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
20. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
21. Copy of Note, Mortgage and any Loan Agreement
22. Copy of subordinate loan documents in substantially the form to be executed
23. Most recent Rent Roll.
24. Other items as required by the description set forth above
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
4. Parties to Lease
j. Landlord:_____________________________________________________________
k. Rent Commencement Date: ______________________________________________
l. Tenant:_______________________________________________________________
m. Parent Company (if applicable):_______________________________________
n. Subtenant and/or Assignee
(if applicable):______________________________________________________
O. IF YES, IS ORIGINAL TENANT LIABLE?
(Y/N)____________________________________________________________
p. Guarantor(s):_________________________________________________________
q. Tenant financial statements
attached:_____________________________________________________________
r. If not,
why:__________________________________________________________________
5. Basic Lease Terms
g. Lease Commencement Date:______________________________________________
h. Rent Commencement Date: ______________________________________________
i. Lease Expiration: ____________________________________________________
j. Unexercised Extension Options (Y/N):__________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs):
______________________________________________________________________
-Terms:_____________________________________________
k. Lease Type (Credit/Form):
______________________________________________________________________
l. Use of Premises:
______________________________________________________________________
6. Lease Economic Terms
g. Current Base Annual Rent $
______________________________________________________________________
h. Scheduled Increases Date/New Annual:
______________________________________________________________________
i. Increases/Option Periods (Date/New Annual Rent/PSF):
______________________________________________________________________
j. Percentage Rent Clause? Breakpoint:
______________________________________________________________________
k. TI Amortization Component:
______________________________________________________________________
l. Rent Concessions (enter month):
______________________________________________________________________
9. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
j. Taxes_________________________________________________________________
k. Insurance_____________________________________________________________
l. Management Fees_______________________________________________________
m. Utilities_____________________________________________________________
n. Non-Structural Maintanance/Repair_____________________________________
o. Contract Services_____________________________________________________
p. Administrative (% of CAM)_____________________________________________
q. Professional Fees_____________________________________________________
r. CAM___________________________________________________________________
10. Options
c. Purchase Option (Note Date/Terms):
______________________________________________________________________
d. Right of First Refusal (Note Date/Terms/Reference DOT):_______________
11. Other Information (Only note those that apply):
e. Expense Stop Formula__________________________________________________
f. Base Year_____________________________________________________________
g. Security/Other Deposits_______________________________________________
h. Tenant Improvement Allowance__________________________________________
-Above Standard
TI's?___________________________________________________________________________
________________________________________________________________________________
12. 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_________________________________________________________________________
13. 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:
----------------------------------
Exhibits to Lease Summary Submission Package
7. Borrower's written request
8. Lease with amendments, if any
9. Current Rent Roll
10. Current Operating Statement
11. Tenant Financial Statement
12. Applicable provision of Loan Documents
EXHIBIT BB
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
Information Format Frequency
----------------------------------------- ------------ ----------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
Property Rent Roll Actual PDF/TIF As received/Quarterly
Other Financials as required by loan Actual PDF/TIF As received
documents
Property Inspection Actual PDF/TIF As received/Quarterly
Payments Received After Determination Monthly Excel Master Servicer Remittance Date
Date Report (1)
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month
Interest on Advance Reconciliation Monthly Excel Distribution Date
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
Documentation Exceptions Report (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: XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP23, issued pursuant to the Pooling and Servicing
Agreement dated as of August 1, 2006 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I 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 Xxxxxx Xxxxxxx Capital I Trust 2006-TOP23 (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
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: XXXXXX XXXXXXX CAPITAL I INC., COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-TOP23, issued pursuant to the Pooling and Servicing
Agreement dated as of August 1, 2006 (the "Pooling and Servicing Agreement")
between Xxxxxx Xxxxxxx Capital I 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 TOP23]
FORM OF TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
August 3, 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: Xxxxxx Xxxxxxx Capital I Trust 2006-TOP23, Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 - [Name of Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Trust 2006-TOP23, Commercial Mortgage Pass-Through
Certificates, Series 2006-TOP23 (the "Trust Fund") is the [_________]
Noteholder, as such term is defined under the [description of intercreditor
agreement] (the "Intercreditor Agreement"). In connection with the deposit of
the [___] Note of the [Non-Serviced Mortgage Loan] into the Xxxxxx Xxxxxxx
Capital I Trust 2006-TOP23 established by Xxxxxx Xxxxxxx Capital I Inc., the
contact information for each of the parties to the related pooling and servicing
agreement are set forth on Schedule I attached hereto.
The [Non-Serviced Mortgage Loan] is being serviced pursuant to the terms of that
certain Pooling and Sevicing agreement dated as of [________], among
[_______________], as may be from time to time amended, supplemented or modified
(the "[______________] Pooling Agreement"). Xxxxx Fargo Bank, National
Association, as 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 Xxxxxx Xxxxxxx
Capital I Trust 2006-TOP23, Commercial Mortgage Pass-Through Certificates,
Series2006-TOP23
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
(MSCII 2006-TOP23 Collection Account Information)
SCHEDULE I
BSCMI LOAN SCHEDULE
CUT-OFF
LOAN DATE
POOL NO. MORTGAGE LOAN SELLER LOAN NUMBER PROPERTY NAME BALANCE NOTE DATE
-------- -------------------- ----------- ----------------------- ----------- ----------
4 BSCMI 0-000 Xxxx Xxxxxxx Business $56,191,000 03/14/2006
Park 7 (I)
5 BSCMI 0-000 Xxxx Xxxxxxx Business $26,809,000 03/14/2006
Park 5 (I)
6 BSCMI 5-001 1275 K Street $66,000,000 06/12/2006
11 BSCMI 10-001 000 Xxxxxxxx Xxxxxx $23,830,000 05/12/2006
12 BSCMI 11-001 The Jewelers Mall $22,960,626 05/18/2006
16 BSCMI 15-001 Black Rock Turnpike $20,600,000 02/28/2006
19 BSCMI 00-000 Xxxx Xxxxxx Xxxxx $18,715,000 04/11/2006
22 BSCMI 21-001 Boudin at the Wharf $17,000,000 03/09/2006
23 BSCMI 22-001 0 Xxxx 00xx Xxxxxx $17,000,000 05/15/2006
24 BSCMI 23-001 Cost Plus - Stockton $16,300,000 04/07/2006
27 BSCMI 26-001 Town Center West $12,500,000 05/11/2006
33 BSCMI 00-000 Xxxxxxxxx Center $10,800,000 04/13/2006
39 BSCMI 35-001 Addison Shopping Center $10,468,774 04/13/2006
40 BSCMI 00-000 Xxxxxx Xxxxx Pavilion $10,347,000 05/31/2006
42 BSCMI 38-001 Bed Bath & Beyond and $ 9,700,000 06/15/2006
Borders
43 BSCMI 39-001 Palo Verde Village $ 9,500,000 05/26/2006
45 BSCMI 00-000 Xxxxxxxxxx Xxxxxx $ 9,000,000 04/28/2006
Shopping Center
54 BSCMI 48-001 Xxxx'x Supermarket $ 7,770,425 03/30/2006
60 BSCMI 00-000 Xxxxxxxxxx $ 7,500,000 12/23/2005
61 BSCMI 55-001 Lansing Shopping Center $ 7,500,000 05/26/2006
71 BSCMI 00-000 Xxxxxxx Xxxxxx Shopping $ 5,940,000 03/02/2006
Center
72 BSCMI 00-000 Xxxxxx Xxxxxxx Xxxxx $ 5,600,000 05/04/2006
79 BSCMI 00-000 Xxxxxxxxxx Xxxxxxxx $ 4,950,000 05/24/2006
98 BSCMI 00-000 Xxxxxxx Xxxxx $ 3,960,082 04/20/2006
101 BSCMI 94-001 CVS - Miami $ 3,643,616 05/05/2006
103 BSCMI 00-000 Xxxxxx - Xxxxxx $ 3,526,928 05/09/2006
107 BSCMI 100-001 Whole Foods Shopping $ 3,300,000 04/19/2006
Center
113 BSCMI 106-001 Porta D' Italia $ 3,150,000 04/07/2006
117 BSCMI 110-001 Rite Aid - Xxxxxxx $ 3,000,000 05/10/2006
119 BSCMI 112-001 000-000 Xxxxx Xxxxxx $ 2,994,413 05/17/2006
120 BSCMI 113-001 0000 Xxxxxxx Xxxxxxx $ 2,994,239 05/16/2006
121 BSCMI 114-001 Super 8 Phoenix $ 2,993,254 05/31/2006
124 BSCMI 000-000 Xxxxxx - Xxxxxxxxxxx $ 2,856,083 05/09/2006
131 BSCMI 124-001 Victory Storage $2,493,289 04/13/2006
137 BSCMI 000-000 Xxxxxx - Xxxxxxxxxxxxxx $2,294,025 04/13/2006
148 BSCMI 139-001 Markets at Mesa Ridge $2,000,000 03/24/2006
150 BSCMI 141-001 CVS Akron $1,880,000 03/17/2006
154 BSCMI 145-001 Forum Credit $1,544,151 03/03/2006
Union/O'Charley's
160 BSCMI 151-001 15 Merchants Concourse $1,350,000 02/24/2006
Notes:
1. Master Servicing fees in excess of 0.02% (or 0.01% for MSMC loans) include a
subservicing fee
S-2-2
ORIGINAL
TERM TO
LOAN MATURITY REMAINING ORIG. REM. MONTHLY DEBT
POOL NO. MORTGAGE LOAN SELLER OR ARD TERM AMORT. AMORT. RATE SERVICE (P&I)
-------- -------------------- -------- --------- ------ ------ ------ -------------
4 BSCMI 120 116 IO IO 5.549% NAP
5 BSCMI 120 116 IO IO 5.549% NAP
6 BSCMI 120 119 IO IO 5.969% NAP
11 BSCMI 144 142 360 360 6.387% $148,855
12 BSCMI 120 118 360 358 6.294% $142,274
16 BSCMI 120 115 360 360 5.365% $115,226
19 BSCMI 60 57 IO IO 4.924% NAP
22 BSCMI 120 116 348 348 5.832% $101,379
23 BSCMI 120 118 360 360 5.744% $ 99,143
24 BSCMI 84 81 IO IO 5.255% NAP
27 BSCMI 120 118 IO IO 6.136% NAP
33 BSCMI 120 117 360 360 5.673% $ 62,499
39 BSCMI 120 117 360 357 5.527% $ 59,796
40 BSCMI 60 58 IO IO 4.920% NAP
42 BSCMI 180 179 IO IO 6.316% NAP
43 BSCMI 120 118 IO IO 6.201% NAP
45 BSCMI 120 117 360 360 5.819% $ 52,917
54 BSCMI 180 176 360 356 5.862% $ 46,075
60 BSCMI 120 113 IO IO 5.140% NAP
61 BSCMI 120 118 IO IO 6.045% NAP
71 BSCMI 120 116 IO IO 5.636% NAP
72 BSCMI 120 118 360 360 6.006% $ 33,596
79 BSCMI 120 118 360 360 6.294% $ 30,620
98 BSCMI 180 177 360 357 6.274% $ 24,506
101 BSCMI 120 118 360 358 6.200% $ 22,355
103 BSCMI 120 118 360 358 6.277% $ 21,815
107 BSCMI 120 117 IO IO 5.469% NAP
113 BSCMI 60 57 IO IO 6.232% NAP
117 BSCMI 180 178 360 360 6.191% $ 18,357
119 BSCMI 180 178 360 358 5.920% $ 17,833
120 BSCMI 120 118 360 358 5.781% $ 17,566
121 BSCMI 120 118 300 298 7.080% $ 21,357
124 BSCMI 120 118 360 358 6.277% $ 17,666
131 BSCMI 120 117 360 357 5.972% $ 14,944
137 BSCMI 120 117 360 357 6.111% $ 13,954
148 BSCMI 120 116 360 360 5.975% $ 11,959
150 BSCMI 120 116 360 360 5.784% $ 11,012
154 BSCMI 120 116 360 356 5.884% $ 9,178
160 BSCMI 120 115 IO IO 5.507% NAP
S-2-3
MASTER
ADMIN SERVICE PRIMARY
LOAN LO END DEF/ COST FEE SERVICE
POOL NO. MORTGAGE LOAN SELLER SEASONING YM CODE LO DATE DEF YMI YM1 OPEN RATE RATE(1) FEE RATE
-------- -------------------- --------- ------- -- ------------ --- ---- --- ---- ----- ------- --------
4 BSCMI 4 28 2/29/2016 90 2 3.145 2.000 1.000
5 BSCMI 4 28 2/29/2016 90 2 3.145 2.000 1.000
6 BSCMI 1 25 6/30/2016 94 1 3.145 2.000 1.000
11 BSCMI 2 26 4/30/2018 116 2 3.145 2.000 1.000
12 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
16 BSCMI 5 29 2/29/2016 90 1 8.145 8.000 0.000
19 BSCMI 3 D 35 4/30/2009 23 2 3.145 2.000 1.000
22 BSCMI 4 28 2/29/2016 90 2 7.145 6.000 1.000
23 BSCMI 2 26 4/30/2016 92 2 3.145 2.000 1.000
24 BSCMI 3 D 35 4/30/2009 47 2 3.145 2.000 1.000
27 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
33 BSCMI 3 27 3/31/2016 91 2 3.145 2.000 1.000
39 BSCMI 3 27 2/29/2016 90 3 7.145 6.000 1.000
40 BSCMI 2 D 35 5/31/2009 23 2 3.145 2.000 1.000
42 BSCMI 1 25 3/31/2021 151 4 3.145 2.000 1.000
43 BSCMI 2 26 3/31/2016 91 3 3.145 2.000 1.000
45 BSCMI 3 F 27 8/31/2008 92 1 3.145 2.000 1.000
54 BSCMI 4 G 23 3/31/2008 153 4 7.145 6.000 1.000
60 BSCMI 7 D 35 12/31/2008 83 2 3.145 2.000 1.000
61 BSCMI 2 D 35 5/31/2009 83 2 3.145 2.000 1.000
71 BSCMI 4 28 12/31/2015 88 4 3.145 2.000 1.000
72 BSCMI 2 J 47 5/31/2010 72 1 8.145 7.000 1.000
79 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
98 BSCMI 3 27 4/30/2021 152 1 3.145 2.000 1.000
101 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
103 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
107 BSCMI 3 G 23 4/30/2008 93 4 7.145 6.000 1.000
113 BSCMI 3 27 3/31/2011 31 2 3.145 2.000 1.000
117 BSCMI 2 26 5/31/2021 153 1 3.145 2.000 1.000
119 BSCMI 2 26 5/31/2021 153 1 3.145 2.000 1.000
120 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
121 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
124 BSCMI 2 26 5/31/2016 93 1 3.145 2.000 1.000
131 BSCMI 3 27 4/30/2016 92 1 3.145 2.000 1.000
137 BSCMI 3 27 4/30/2016 92 1 8.145 8.000 0.000
148 BSCMI 4 28 2/29/2016 90 2 8.145 7.000 1.000
150 BSCMI 4 N 0 NAP 91 28 1 3.145 2.000 1.000
154 BSCMI 4 N 0 NAP 91 28 1 3.145 2.000 1.000
160 BSCMI 5 F 29 8/31/2008 87 4 3.145 2.000 1.000
S-2-4
MASTER PRIMARY
EXCESS EXCESS
SERV. SERVICING EXCESS
LOAN MORTGAGE FEE RATE FEE RATE TRUSTEE SERVICE
POOL NO. LOAN SELLER (BPS) (BPS) DEAL FEES FEE RATE FEE RATE
-------- ----------- -------- --------- --------- -------- --------
4 BSCMI 0.000 0.000 3.000 0.145 0.000
5 BSCMI 0.000 0.000 3.000 0.145 0.000
6 BSCMI 0.000 0.000 3.000 0.145 0.000
11 BSCMI 0.000 0.000 3.000 0.145 0.000
12 BSCMI 0.000 0.000 3.000 0.145 0.000
16 BSCMI 0.000 0.000 8.000 0.145 0.000
19 BSCMI 0.000 0.000 3.000 0.145 0.000
22 BSCMI 0.000 0.000 7.000 0.145 0.000
23 BSCMI 0.000 0.000 3.000 0.145 0.000
24 BSCMI 0.000 0.000 3.000 0.145 0.000
27 BSCMI 0.000 0.000 3.000 0.145 0.000
33 BSCMI 0.000 0.000 3.000 0.145 0.000
39 BSCMI 0.000 0.000 7.000 0.145 0.000
40 BSCMI 0.000 0.000 3.000 0.145 0.000
42 BSCMI 0.000 0.000 3.000 0.145 0.000
43 BSCMI 0.000 0.000 3.000 0.145 0.000
45 BSCMI 0.000 0.000 3.000 0.145 0.000
54 BSCMI 0.000 0.000 7.000 0.145 0.000
60 BSCMI 0.000 0.000 3.000 0.145 0.000
61 BSCMI 0.000 0.000 3.000 0.145 0.000
71 BSCMI 0.000 0.000 3.000 0.145 0.000
72 BSCMI 0.000 0.000 8.000 0.145 0.000
79 BSCMI 0.000 0.000 3.000 0.145 0.000
98 BSCMI 0.000 0.000 3.000 0.145 0.000
101 BSCMI 0.000 0.000 3.000 0.145 0.000
103 BSCMI 0.000 0.000 3.000 0.145 0.000
107 BSCMI 0.000 0.000 7.000 0.145 0.000
113 BSCMI 0.000 0.000 3.000 0.145 0.000
117 BSCMI 0.000 0.000 3.000 0.145 0.000
119 BSCMI 0.000 0.000 3.000 0.145 0.000
120 BSCMI 0.000 0.000 3.000 0.145 0.000
121 BSCMI 0.000 0.000 3.000 0.145 0.000
124 BSCMI 0.000 0.000 3.000 0.145 0.000
131 BSCMI 0.000 0.000 3.000 0.145 0.000
137 BSCMI 0.000 0.000 8.000 0.145 0.000
148 BSCMI 0.000 0.000 8.000 0.145 0.000
150 BSCMI 0.000 0.000 3.000 0.145 0.000
154 BSCMI 0.000 0.000 3.000 0.145 0.000
160 BSCMI 0.000 0.000 3.000 0.145 0.000
S-2-5
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
ORIGINAL MONTHLY
TERM TO DEBT
LOAN MORTGAGE MATURITY REMAINING ORIG. REM. SERVICE
POOL NO. LOAN SELLER OR ARD TERM AMORT. AMORT. RATE (P&I)
-------- ----------- -------- --------- ------ ------ ----- --------
2 WFB 120 116 360 360 5.750% $817,002
14 WFB 120 117 120 117 5.770% $252,699
20 WFB 120 119 360 360 5.960% $104,472
28 WFB 120 117 IO IO 5.640% NAP
30 WFB 120 119 300 299 6.200% $ 78,790
31 WFB 120 118 360 358 5.690% $ 67,108
32 WFB 120 117 IO IO 5.640% NAP
44 WFB 120 118 360 360 6.340% $ 56,564
46 WFB 120 118 IO IO 5.640% NAP
51 WFB 120 119 360 360 5.725% $ 46,559
58 WFB 120 118 IO IO 5.990% NAP
68 WFB 120 118 360 360 6.270% $ 40,106
69 WFB 120 117 360 357 6.480% $ 40,469
73 WFB 120 118 IO IO 5.640% NAP
75 WFB 120 119 360 360 5.720% $ 29,083
80 WFB 120 116 360 356 6.080% $ 28,935
83 WFB 113 111 360 360 5.540% $ 26,519
84 WFB 120 118 360 360 6.240% $ 27,986
87 WFB 120 117 240 237 6.300% $ 31,922
89 WFB 120 113 360 353 5.320% $ 23,653
92 WFB 120 118 IO IO 5.640% NAP
93 WFB 120 119 360 359 6.320% $ 24,811
94 WFB 120 118 360 358 6.330% $ 24,837
99 WFB 120 118 360 360 6.240% $ 22,757
100 WFB 120 118 360 360 5.970% $ 21,813
105 WFB 120 110 240 230 5.250% $ 23,585
106 WFB 120 116 360 356 5.928% $ 19,929
109 WFB 120 117 360 357 6.340% $ 20,388
111 WFB 120 118 360 358 5.950% $ 19,083
114 WFB 120 118 360 360 5.940% $ 18,765
115 WFB 120 118 360 358 6.395% $ 19,631
122 WFB 120 117 360 357 5.870% $ 17,737
123 WFB 120 116 360 356 5.870% $ 17,323
125 WFB 120 117 360 357 6.040% $ 17,221
128 WFB 120 117 IO IO 6.070% NAP
130 WFB 120 118 360 358 5.930% $ 14,876
132 WFB 120 111 360 351 5.510% $ 14,210
133 WFB 120 117 360 357 6.170% $ 15,141
135 WFB 120 118 360 358 6.240% $ 14,147
141 WFB 120 118 360 360 6.250% $ 5,752
142 WFB 120 118 360 360 6.250% $ 5,752
143 WFB 120 118 360 360 6.250% $ 1,795
144 WFB 120 118 360 358 6.580% $ 13,384
145 WFB 120 119 120 119 6.300% $ 23,069
146 WFB 120 118 IO IO 5.640% NAP
147 WFB 120 118 IO IO 5.640% NAP
149 WFB 120 119 360 359 6.320% $ 11,909
152 WFB 120 115 360 355 6.010% $ 9,903
157 WFB 120 115 IO IO 5.570% NAP
158 WFB 120 118 360 358 5.880% $ 8,286
159 WFB 120 116 360 356 6.280% $ 8,647
162 WFB 120 118 360 358 6.190% $ 7,648
163 WFB 120 118 360 358 6.460% $ 7,553
164 WFB 120 115 360 355 5.760% $ 6,864
165 WFB 120 118 360 358 6.210% $ 7,143
166 WFB 120 119 360 359 6.230% $ 6,550
167 WFB 120 118 300 298 6.510% $ 7,096
168 WFB 120 118 IO IO 5.640% NAP
169 WFB 120 116 360 356 5.960% $ 5,970
MASTER
ADMIN SERVICE PRIMARY
LOAN MORTGAGE YM LO END DEF/ COST FEE SERVICE
POOL NO. LOAN SELLER SEASONING CODE LO DATE DEF YMI YM1 OPEN RATE RATE(1) FEE RATE
-------- ----------- --------- ---- -- ---------- --- ---- ---- ---- ------ ------- --------
2 WFB 4 28 12/31/2015 88 4 3.145 2.000 1.000
14 WFB 3 B 35 4/30/2009 81 4 3.145 2.000 1.000
20 WFB 1 35 5/31/2016 83 2 3.145 2.000 1.000
28 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
30 WFB 1 35 3/31/2016 81 4 3.145 2.000 1.000
31 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
32 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
44 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
46 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
51 WFB 1 35 3/31/2016 81 4 3.145 2.000 1.000
58 WFB 2 26 2/29/2016 90 4 3.145 2.000 1.000
68 WFB 2 35 11/30/2015 78 7 3.145 2.000 1.000
69 WFB 3 35 3/31/2016 83 2 8.145 7.000 1.000
73 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
75 WFB 1 35 3/31/2016 81 4 3.145 2.000 1.000
80 WFB 4 35 2/29/2016 83 2 3.145 2.000 1.000
83 WFB 2 28 7/31/2015 81 4 3.145 2.000 1.000
84 WFB 2 35 4/30/2016 83 2 3.145 2.000 1.000
87 WFB 3 27 3/31/2016 91 2 3.145 2.000 1.000
89 WFB 7 35 11/30/2015 83 2 3.145 2.000 1.000
92 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
93 WFB 1 B 35 6/30/2009 81 4 3.145 2.000 1.000
94 WFB 2 B 26 8/31/2008 92 2 3.145 2.000 1.000
99 WFB 2 35 4/30/2016 83 2 3.145 2.000 1.000
100 WFB 2 35 2/29/2016 81 4 3.145 2.000 1.000
105 WFB 10 34 8/31/2015 84 2 3.145 2.000 1.000
106 WFB 4 35 12/31/2015 81 4 3.145 2.000 1.000
109 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
111 WFB 2 B 35 5/31/2009 81 4 3.145 2.000 1.000
114 WFB 2 B 35 5/31/2009 81 4 3.145 2.000 1.000
115 WFB 2 B 26 8/31/2008 90 4 3.145 2.000 1.000
122 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
123 WFB 4 35 2/29/2016 83 2 3.145 2.000 1.000
125 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
128 WFB 3 35 3/31/2016 83 2 3.145 2.000 1.000
130 WFB 2 B 35 5/31/2009 81 4 5.145 2.000 1.000
132 WFB 9 B 35 10/31/2008 83 2 7.145 2.000 1.000
133 WFB 3 35 1/31/2016 81 4 3.145 2.000 1.000
135 WFB 2 35 2/29/2016 81 4 4.145 2.000 1.000
141 WFB 2 35 2/29/2016 81 4 9.145 2.000 1.000
142 WFB 2 35 2/29/2016 81 4 9.145 2.000 1.000
143 WFB 2 35 2/29/2016 81 4 9.145 2.000 1.000
144 WFB 2 35 2/29/2016 81 4 5.145 2.000 1.000
145 WFB 1 35 3/31/2016 81 4 3.145 2.000 1.000
146 WFB 2 35 2/29/2016 81 4 5.145 2.000 1.000
147 WFB 2 35 2/29/2016 81 4 5.145 2.000 1.000
149 WFB 1 35 3/31/2016 81 4 3.145 2.000 1.000
152 WFB 5 B 35 2/28/2009 83 2 7.145 2.000 1.000
157 WFB 5 B 35 2/28/2009 81 4 18.145 7.000 1.000
158 WFB 2 35 4/30/2016 83 2 5.145 2.000 1.000
159 WFB 4 B 35 3/31/2009 81 4 13.145 2.000 1.000
162 WFB 2 35 11/30/2015 78 7 4.145 2.000 1.000
163 WFB 2 B 35 5/31/2009 81 4 14.145 2.000 1.000
164 WFB 5 35 1/31/2016 83 2 11.145 2.000 1.000
165 WFB 2 35 4/30/2016 83 2 12.145 2.000 1.000
166 WFB 1 35 3/31/2016 81 4 12.145 2.000 1.000
167 WFB 2 B 35 5/31/2009 81 4 17.145 2.000 1.000
168 WFB 2 35 2/29/2016 81 4 13.145 2.000 1.000
169 WFB 4 35 12/31/2015 81 4 15.145 2.000 1.000
MASTER PRIMARY
EXCESS EXCESS EXCESS
SERV. SERVICING TRUSTEE SERVICE
LOAN MORTGAGE FEE RATE FEE RATE DEAL FEE FEE
POOL NO. LOAN SELLER (BPS) (BPS) FEES RATE RATE
-------- ----------- -------- --------- ------ ------- -------
2 WFB 0.000 0.000 3.000 0.145 0.000
14 WFB 0.000 0.000 3.000 0.145 0.000
20 WFB 0.000 0.000 3.000 0.145 0.000
28 WFB 0.000 0.000 3.000 0.145 0.000
30 WFB 0.000 0.000 3.000 0.145 0.000
31 WFB 0.000 0.000 3.000 0.145 0.000
32 WFB 0.000 0.000 3.000 0.145 0.000
44 WFB 0.000 0.000 3.000 0.145 0.000
46 WFB 0.000 0.000 3.000 0.145 0.000
51 WFB 0.000 0.000 3.000 0.145 0.000
58 WFB 0.000 0.000 3.000 0.145 0.000
68 WFB 0.000 0.000 3.000 0.145 0.000
69 WFB 0.000 0.000 8.000 0.145 0.000
73 WFB 0.000 0.000 3.000 0.145 0.000
75 WFB 0.000 0.000 3.000 0.145 0.000
80 WFB 0.000 0.000 3.000 0.145 0.000
83 WFB 0.000 0.000 3.000 0.145 0.000
84 WFB 0.000 0.000 3.000 0.145 0.000
87 WFB 0.000 0.000 3.000 0.145 0.000
89 WFB 0.000 0.000 3.000 0.145 0.000
92 WFB 0.000 0.000 3.000 0.145 0.000
93 WFB 0.000 0.000 3.000 0.145 0.000
94 WFB 0.000 0.000 3.000 0.145 0.000
99 WFB 0.000 0.000 3.000 0.145 0.000
100 WFB 0.000 0.000 3.000 0.145 0.000
105 WFB 0.000 0.000 3.000 0.145 0.000
106 WFB 0.000 0.000 3.000 0.145 0.000
109 WFB 0.000 0.000 3.000 0.145 0.000
111 WFB 0.000 0.000 3.000 0.145 0.000
114 WFB 0.000 0.000 3.000 0.145 0.000
115 WFB 0.000 0.000 3.000 0.145 0.000
122 WFB 0.000 0.000 3.000 0.145 0.000
123 WFB 0.000 0.000 3.000 0.145 0.000
125 WFB 0.000 0.000 3.000 0.145 0.000
128 WFB 0.000 0.000 3.000 0.145 0.000
130 WFB 2.000 0.000 5.000 0.145 2.000
132 WFB 4.000 0.000 7.000 0.145 4.000
133 WFB 0.000 0.000 3.000 0.145 0.000
135 WFB 1.000 0.000 4.000 0.145 1.000
141 WFB 6.000 0.000 9.000 0.145 6.000
142 WFB 6.000 0.000 9.000 0.145 6.000
143 WFB 6.000 0.000 9.000 0.145 6.000
144 WFB 2.000 0.000 5.000 0.145 2.000
145 WFB 0.000 0.000 3.000 0.145 0.000
146 WFB 2.000 0.000 5.000 0.145 2.000
147 WFB 2.000 0.000 5.000 0.145 2.000
149 WFB 0.000 0.000 3.000 0.145 0.000
152 WFB 4.000 0.000 7.000 0.145 4.000
157 WFB 10.000 0.000 18.000 0.145 10.000
158 WFB 2.000 0.000 5.000 0.145 2.000
159 WFB 10.000 0.000 13.000 0.145 10.000
162 WFB 1.000 0.000 4.000 0.145 1.000
163 WFB 11.000 0.000 14.000 0.145 11.000
164 WFB 8.000 0.000 11.000 0.145 8.000
165 WFB 9.000 0.000 12.000 0.145 9.000
166 WFB 9.000 0.000 12.000 0.145 9.000
167 WFB 14.000 0.000 17.000 0.145 14.000
168 WFB 10.000 0.000 13.000 0.145 10.000
169 WFB 12.000 0.000 15.000 0.145 12.000
SCHEDULE III
PRINCIPAL II LOAN SCHEDULE
LOAN MORTGAGE CUT-OFF DATE
POOL NO. LOAN SELLER LOAN NUMBER PROPERTY NAME BALANCE NOTE DATE
-------- ----------- ----------- ----------------------------------------------------- ------------ ----------
3 PCF II 0-000 Xxxxxxxx Xxxxx Mall $117,000,000 07/06/2006
8 PCF II 0-000 Xxxxxxxxxx Financial Center $ 34,500,000 05/02/2006
9 PCF II 0-000 Xxxxx Building $ 32,000,000 06/23/2006
10 PCF II 9-001 The Reserve $ 25,000,000 05/09/2006
13 PCF II 12-001 Valley Corporate Center $ 22,700,000 05/30/2006
15 PCF II 14-001 0000 Xx Xxxxx Xxxxxx $ 21,350,000 05/18/2006
18 PCF II 00-000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxx $ 20,480,000 06/06/2006
21 PCF II 20-001 14401 County Road 212 $ 17,000,000 04/03/2006
25 PCF II 00-000 Xxxxx Xxxxx Center $ 15,600,000 05/10/2006
34 PCF II 33-001 The Legacy Units $ 10,500,000 05/11/2006
35 PCF II 00-000 Xxxxx Xxxxxxxx Industrial Portfolio - 000 X. Xxxxxxx
Xxxxxxx (II) $ 4,286,517 04/04/2006
36 PCF II 00-000 Xxxxx Xxxxxxxx Industrial Portfolio - 0000 X. 00xx
Xxxxxx (II) $ 3,067,416 04/04/2006
37 PCF II 00-000 Xxxxx Xxxxxxxx Xxxxxxxxxx Xxxxxxxxx - 0000-0000 Xxxx
000xx Xxxxxx (II) $ 1,966,292 04/04/2006
38 PCF II 00-000 Xxxxx Xxxxxxxx Industrial Portfolio - 00000 X. Xxxxxx
Xxxxxx (II) $ 1,179,775 04/04/2006
41 PCF II 37-001 Marketplace At Collegeville $ 9,966,538 06/02/2006
55 PCF II 49-001 Suncrest Commerce Center Industrial Warehouse $ 7,625,000 05/16/2006
64 PCF II 00-000 XXXXX Portfolio - 0000 Xxxx Xxx Xxxxxx & 0000
Xxxxxxxx Xxxxx (IV) $ 3,457,865 05/05/2006
65 PCF II 00-000 XXXXX Portfolio - 0000 Xxxxx Xxxxxx (IV) $ 3,324,300 05/05/2006
00 XXX XX 00-000 Xxxxxxxxx Xxxxx I $ 6,150,000 05/31/2006
76 PCF II 69-001 00 Xxxxxxxxx Xxxxxx $ 5,000,000 05/12/2006
78 PCF II 00-000 Xxxxxxxxxx Xxxx $ 4,979,263 03/31/2006
110 PCF II 000-000 Xxxxxx Xxxxxx Office Building $ 3,194,441 05/10/2006
000 XXX XX 000-000 Xxxx Xxxxxxxx Apartments $ 3,035,885 02/03/2006
000 XXX XX 000-000 Xxxxxxx xx Xxxxxxx Xxxx $ 2,797,691 06/19/2006
129 PCF II 000-000 Xxxxxxxxxx Xxxxxxxx Xxxxxx $ 2,563,518 03/17/2006
134 PCF II 127-001 000 X. 0xx Xxxxxx $ 2,395,619 05/25/2006
136 PCF II 129-001 0000 Xxxxxxx Xxxxxx $ 2,295,904 05/19/2006
139 PCF II 132-001 Fry's Center Shops $ 2,200,000 05/22/2006
153 PCF II 144-001 6010 & 0000 Xxxxx Xxxxxxx Xxxxxxxxx $ 1,557,197 05/02/2006
155 PCF II 146-001 000 Xxxxx Xxxxxx $ 1,498,123 06/01/2006
156 PCF II 147-001 000 Xxxxxxxx Xxxx $ 1,493,901 05/16/2006
161 PCF II 152-001 0000 XxXxxxxxx Xxxxx $ 1,346,598 05/03/2006
170 PCF II 161-001 00000 Xxxxxxxx Xxxxxx $ 946,277 05/12/2006
171 PCF II 000-000 000 Xxxxxxx Crossing $ 946,277 05/22/2006
Notes:
1. Master Servicing fees in excess of 0.02% (or 0.01% for MSMC loans) include
a subservicing fee
ORIGINAL
TERM TO
LOAN MORTGAGE MATURITY OR REMAINING MONTHLY DEBT
POOL NO. LOAN SELLER ARD TERM ORIG. AMORT. REM. AMORT. RATE SERVICE (P&I)
-------- ----------- ----------- --------- ------------ ----------- ----- -------------
3 PCF II 120 120 360 360 5.860% $690,978
8 PCF II 120 117 360 360 5.955% $205,848
9 PCF II 120 119 IO IO 6.080% NAP
10 PCF II 84 82 IO IO 6.270% NAP
13 PCF II 120 118 360 360 5.950% $135,369
15 PCF II 120 119 360 360 5.900% $126,635
18 PCF II 120 119 360 360 6.140% $124,637
21 PCF II 120 117 IO IO 5.470% NAP
25 PCF II 120 118 IO IO 5.980% NAP
34 PCF II 120 118 IO IO 5.940% NAP
35 PCF II 120 116 360 360 5.780% $ 25,097
36 PCF II 120 116 360 360 5.780% $ 17,959
37 PCF II 120 116 360 360 5.780% $ 11,512
38 PCF II 120 116 360 360 5.780% $ 6,907
41 PCF II 180 179 180 179 5.770% $ 83,148
55 PCF II 120 118 360 360 5.880% $ 45,129
64 PCF II 240 238 240 238 6.160% $ 25,196
65 PCF II 240 238 240 238 6.160% $ 24,223
70 PCF II 120 118 IO IO 6.050% NAP
76 PCF II 120 118 240 240 5.920% $ 35,591
78 PCF II 152 149 300 297 5.820% $ 31,667
110 PCF II 120 118 360 358 6.230% $ 19,661
116 PCF II 120 115 360 355 5.900% $ 18,091
127 PCF II 120 119 360 359 6.020% $ 16,823
129 PCF II 180 176 180 176 5.590% $ 21,369
134 PCF II 84 82 360 358 6.010% $ 14,405
136 PCF II 120 118 360 358 6.120% $ 13,968
139 PCF II 120 118 360 360 6.210% $ 13,489
153 PCF II 120 118 360 358 6.080% $ 9,433
155 PCF II 120 119 300 299 6.100% $ 9,756
156 PCF II 120 118 240 238 6.200% $ 10,920
161 PCF II 180 178 300 298 6.450% $ 9,073
170 PCF II 120 118 240 238 6.480% $ 7,072
171 PCF II 120 118 240 238 6.480% $ 7,072
MASTER PRIMARY
ADMIN SERVICE SERVICE
LOAN MORTGAGE YM LO END DEF/Y COST FEE FEE
POOL NO. LOAN SELLER SEASONING CODE LO DATE DEF M1 YM1 OPEN RATE RATE(1) RATE
-------- ----------- --------- ---- -- --------- --- ----- --- ---- ----- ------- -------
3 PCF II 0 24 4/30/2016 92 4 3.145 2.000 1.000
8 PCF II 3 27 3/31/2016 91 2 3.145 2.000 1.000
9 PCF II 1 A 0 NAP 118 2 3.145 2.000 1.000
10 PCF II 2 26 4/30/2013 56 2 3.145 2.000 1.000
13 PCF II 2 A 0 NAP 118 2 3.145 2.000 1.000
15 PCF II 1 A 0 NAP 117 3 3.145 2.000 1.000
18 PCF II 1 A 12 7/31/2007 93 13 2 3.145 2.000 1.000
21 PCF II 3 E 0 NAP 118 2 3.145 2.000 1.000
25 PCF II 2 A 0 NAP 117 3 3.145 2.000 1.000
34 PCF II 2 A 0 NAP 116 4 3.145 2.000 1.000
35 PCF II 4 E 28 8/31/2008 90 2 3.145 2.000 1.000
36 PCF II 4 E 28 8/31/2008 90 2 3.145 2.000 1.000
37 PCF II 4 E 28 8/31/2008 90 2 3.145 2.000 1.000
38 PCF II 4 E 28 8/31/2008 90 2 3.145 2.000 1.000
41 PCF II 1 25 5/31/2021 153 2 3.145 2.000 1.000
55 PCF II 2 26 4/30/2016 92 2 3.145 2.000 1.000
64 PCF II 2 E 48 6/30/2010 190 2 3.145 2.000 1.000
65 PCF II 2 E 48 6/30/2010 190 2 3.145 2.000 1.000
70 PCF II 2 26 3/31/2016 91 3 3.145 2.000 1.000
76 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
78 PCF II 3 E 27 9/2/2008 123 2 3.145 2.000 1.000
110 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
116 PCF II 5 E 26 5/31/2008 92 2 3.145 2.000 1.000
127 PCF II 1 E 25 8/31/2008 93 2 3.145 2.000 1.000
129 PCF II 4 E 28 8/31/2008 150 2 3.145 2.000 1.000
134 PCF II 2 26 4/30/2013 56 2 3.145 2.000 1.000
136 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
139 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
153 PCF II 2 26 4/30/2016 92 2 3.145 2.000 1.000
155 PCF II 1 E 25 8/31/2008 91 4 3.145 2.000 1.000
156 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
161 PCF II 2 E 26 8/31/2008 144 10 3.145 2.000 1.000
170 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
171 PCF II 2 E 26 8/31/2008 92 2 3.145 2.000 1.000
MASTER PRIMARY
EXCESS EXCESS
SERV. SERVICING EXCESS
LOAN MORTGAGE FEE RATE FEE RATE TRUSTEE FEE SERVICE FEE
POOL NO. LOAN SELLER (BPS) (BPS) DEAL FEES RATE RATE
-------- ----------- -------- --------- --------- ----------- -----------
3 PCF II 0.000 0.000 3.000 0.145 0.000
8 PCF II 0.000 0.000 3.000 0.145 0.000
9 PCF II 0.000 0.000 3.000 0.145 0.000
10 PCF II 0.000 0.000 3.000 0.145 0.000
13 PCF II 0.000 0.000 3.000 0.145 0.000
15 PCF II 0.000 0.000 3.000 0.145 0.000
18 PCF II 0.000 0.000 3.000 0.145 0.000
21 PCF II 0.000 0.000 3.000 0.145 0.000
25 PCF II 0.000 0.000 3.000 0.145 0.000
34 PCF II 0.000 0.000 3.000 0.145 0.000
35 PCF II 0.000 0.000 3.000 0.145 0.000
36 PCF II 0.000 0.000 3.000 0.145 0.000
37 PCF II 0.000 0.000 3.000 0.145 0.000
38 PCF II 0.000 0.000 3.000 0.145 0.000
41 PCF II 0.000 0.000 3.000 0.145 0.000
55 PCF II 0.000 0.000 3.000 0.145 0.000
64 PCF II 0.000 0.000 3.000 0.145 0.000
65 PCF II 0.000 0.000 3.000 0.145 0.000
70 PCF II 0.000 0.000 3.000 0.145 0.000
76 PCF II 0.000 0.000 3.000 0.145 0.000
78 PCF II 0.000 0.000 3.000 0.145 0.000
110 PCF II 0.000 0.000 3.000 0.145 0.000
116 PCF II 0.000 0.000 3.000 0.145 0.000
127 PCF II 0.000 0.000 3.000 0.145 0.000
129 PCF II 0.000 0.000 3.000 0.145 0.000
134 PCF II 0.000 0.000 3.000 0.145 0.000
136 PCF II 0.000 0.000 3.000 0.145 0.000
139 PCF II 0.000 0.000 3.000 0.145 0.000
153 PCF II 0.000 0.000 3.000 0.145 0.000
155 PCF II 0.000 0.000 3.000 0.145 0.000
156 PCF II 0.000 0.000 3.000 0.145 0.000
161 PCF II 0.000 0.000 3.000 0.145 0.000
170 PCF II 0.000 0.000 3.000 0.145 0.000
171 PCF II 0.000 0.000 3.000 0.145 0.000
SCHEDULE IV
XXXXXX XXXXXXX MORTGAGE CAPITAL LOAN SCHEDULE
LOAN MORTGAGE CUT-OFF DATE
POOL NO. LOAN SELLER LOAN NUMBER PROPERTY NAME BALANCE NOTE DATE
-------- ----------- ----------- --------------------------------------------- ------------- ----------
1 MSMC 0-000 Xxxxxxxxx Xxxxx Mall $149,397,658 05/31/2006
7 MSMC 6-001 2021 K Street $ 40,000,000 04/17/2006
17 MSMC 16-001 Hampton Inn and Suites Skokie $ 20,483,673 06/15/2006
26 XXXX 00-000 Xxxx xx Xxxxxxx Complex $ 12,600,000 05/04/2006
29 MSMC 00-000 Xxxxxx Xxxx Xxxxx $ 12,000,000 10/06/2005
47 MSMC 43-001 H&R Properties Retail Portfolio - 0000 Xxxxx
Xxxxxxxx Xxxxxx (III) $ 3,127,554 06/12/2006
48 MSMC 43-002 H&R Properties Retail Portfolio - 0000-0000
Xxxxxxxxx Xxxxxxxxx (III) $ 3,127,554 06/12/2006
49 MSMC 43-003 H&R Properties Retail Portfolio - 0000
Xxxxxxxx Xxxx (III) $ 2,098,359 06/12/2006
50 MSMC 00-000 Xxxxx Center - Gainesville $ 8,000,000 03/29/2006
52 XXXX 00-000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx $ 8,000,000 05/30/2006
53 MSMC 47-001 000 Xxxxxxxx Xxxxxx $ 7,969,986 03/23/2006
56 XXXX 00-000 Xxx Xxxxxx Xxxxxxxxx - Xxxxx Xxxxx Xxxxxx (X) $ 4,487,234 05/05/2006
57 XXXX 00-000 Xxx Xxxxxx Xxxxxxxxx - Xxxxxxxxx Xxx (X) $ 3,091,206 05/05/2006
59 MSMC 53-001 000 Xxxxxxxx (Loews Theater) $ 7,500,000 04/18/2006
62 MSMC 56-001 Whole Foods Market $ 7,000,000 03/21/2006
63 XXXX 00-000 00xx & Xxxxxxx Xxxxxx $ 6,881,469 04/11/2006
66 MSMC 59-001 Holiday Inn Express - Sunset Valley $ 6,533,523 05/18/2006
67 MSMC 00-000 Xxxxxxxx Corporate Center II $ 6,500,000 04/07/2006
74 MSMC 00-000 Xxxxxxx Xxxxx $ 5,000,000 03/09/2006
77 MSMC 00-000 0000 and 0000 Xxxx Xxxxxxx $ 4,986,947 04/06/2006
81 MSMC 00-000 Xxxxxxxx Executive Center $ 4,750,000 04/18/2006
82 MSMC 00-000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx $ 4,650,000 04/27/2006
85 MSMC 00-000 Xxxxx 0 - Xxxx Xxxxx $ 4,474,387 03/09/2006
86 XXXX 00-000 Xxxxxxxxxx Xxxxxxxx Xxxxxx $ 4,355,656 03/13/2006
88 MSMC 00-000 Xxxxx Xxxxxx Xxxxxxxx Xxxxx $ 4,250,000 06/06/2006
90 MSMC 00-000 Xx. Xxxx Dominican Medical Plaza $ 4,100,000 06/27/2006
91 MSMC 84-001 000 Xxxx Xxxxxx Xxxx $ 4,000,000 01/27/2006
95 MSMC 00-000 0000 Broadway $ 3,993,020 05/30/2006
96 MSMC 89-001 Imperial House Apartments $ 3,992,844 05/10/2006
97 MSMC 90-001 Northern Trust Bank $ 3,989,003 04/27/2006
102 MSMC 00-000 Xxxxxxx Xxxxxxxxx $ 3,621,786 06/12/2006
104 MSMC 00-000 Xxxxxxxx Xxxxxxxxxxx $ 3,500,000 04/13/2006
108 MSMC 101-001 X.X. Xxx Vista $ 3,291,688 04/13/2006
000 XXXX 000-000 Xxxx Xxxxxxx - Xxxxxxxxx Xxxxxxx $ 3,191,922 05/26/2006
118 XXXX 000-000 Xxxxx Xxxxx Xxxxxxx MHC $ 2,997,481 06/26/2006
126 MSMC 119-001 North Dallas Ground Leases $ 2,800,000 04/07/2006
138 MSMC 000-000 Xxxxxxx Xxxx Xxxxx Xxxxxx $ 2,208,564 03/01/2006
140 MSMC 000-000 Xxxxxxx Xxxxxxxx Xxxxxx $ 2,173,309 06/01/2006
151 MSMC 142-001 Advance Auto Parts $ 1,697,067 05/30/2006
Notes:
1. Master Servicing fees in excess of 0.02% (or 0.01% for MSMC loans) include
a subservicing fee
ORIGINAL MONTHLY
TERM TO DEBT
LOAN MORTGAGE MATURITY REMAINING ORIG. REM. SERVICE
POOL NO. LOAN SELLER OR ARD TERM AMORT. AMORT. RATE (P&I)
-------- ----------- -------- --------- ------ ------ ----- --------
1 MSMC 60 56 360 356 5.599% $861,024
7 MSMC 120 117 IO IO 5.700% NAP
17 MSMC 120 119 360 359 6.150% $124,892
26 MSMC 120 118 IO IO 5.950% NAP
29 MSMC 120 111 360 360 5.100% $ 65,154
47 MSMC 120 119 360 359 6.220% $ 19,211
48 MSMC 120 119 360 359 6.220% $ 19,211
49 MSMC 120 119 360 359 6.220% $ 12,889
50 MSMC 180 176 360 360 5.960% $ 47,759
52 MSMC 120 118 IO IO 6.090% NAP
53 MSMC 120 116 360 356 5.910% $ 47,502
56 MSMC 120 118 300 298 5.770% $ 28,364
57 MSMC 120 118 300 298 5.770% $ 19,540
59 MSMC 120 117 IO IO 6.100% NAP
62 MSMC 120 116 360 360 5.660% $ 40,451
63 MSMC 120 117 360 357 5.970% $ 41,236
66 MSMC 120 118 300 298 6.460% $ 44,062
67 MSMC 120 116 360 360 5.520% $ 36,988
74 MSMC 60 56 IO IO 6.210% NAP
77 MSMC 60 57 360 357 6.090% $ 30,267
81 MSMC 120 117 360 360 5.780% $ 27,810
82 MSMC 120 117 IO IO 5.890% NAP
85 MSMC 120 116 300 296 5.780% $ 28,391
86 MSMC 120 116 360 356 5.790% $ 25,628
88 MSMC 120 119 360 360 6.360% $ 26,473
90 MSMC 120 119 360 360 5.635% $ 23,628
91 MSMC 120 114 IO IO 5.100% NAP
95 MSMC 120 118 360 358 6.210% $ 24,525
96 MSMC 120 118 360 358 6.100% $ 24,240
97 MSMC 120 117 360 357 5.870% $ 23,649
102 MSMC 120 119 360 359 5.740% $ 21,131
104 MSMC 120 117 360 360 5.830% $ 20,603
108 MSMC 120 117 360 357 6.240% $ 20,297
112 MSMC 120 118 300 298 6.440% $ 21,487
118 MSMC 120 119 360 359 5.950% $ 17,890
126 MSMC 120 117 360 360 5.980% $ 16,751
138 MSMC 120 116 360 356 5.850% $ 13,079
140 MSMC 120 119 360 359 6.240% $ 13,378
151 MSMC 120 118 360 358 6.260% $ 10,478
MASTER
ADMIN SERVICE PRIMARY
LOAN MORTGAGE YM LO END DEF/ COST FEE SERVICE
POOL NO. LOAN SELLER SEASONING CODE LO DATE DEF YMI YM1 OPEN RATE RATE(1) FEE RATE
-------- ----------- --------- ---- -- ---------- --- ---- --- ---- ------ ------- --------
1 MSMC 4 28 10/6/2010 25 7 2.145 1.000 1.000
7 MSMC 3 27 2/6/2016 89 4 2.145 1.000 1.000
17 MSMC 1 C 25 8/31/2008 91 4 2.145 1.000 1.000
26 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
29 MSMC 9 33 7/31/2015 83 4 2.145 1.000 1.000
47 MSMC 1 25 4/7/2016 91 4 2.145 1.000 1.000
48 MSMC 1 25 4/7/2016 91 4 2.145 1.000 1.000
49 MSMC 1 25 4/7/2016 91 4 2.145 1.000 1.000
50 MSMC 4 28 3/31/2019 127 25 2.145 1.000 1.000
52 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
53 MSMC 4 28 12/31/2015 88 4 2.145 1.000 1.000
56 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
57 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
59 MSMC 3 H 23 5/6/2008 93 4 2.145 1.000 1.000
62 MSMC 4 28 12/31/2015 88 4 2.145 1.000 1.000
63 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
66 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
67 MSMC 4 I 4 9/7/2006 111 5 2.145 1.000 1.000
74 MSMC 4 K 47 3/31/2010 9 4 12.145 10.000 1.000
77 MSMC 3 27 4/30/2010 20 13 2.145 1.000 1.000
81 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
82 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
85 MSMC 4 28 9/30/2015 85 7 2.145 1.000 1.000
86 MSMC 4 28 12/31/2015 88 4 2.145 1.000 1.000
88 MSMC 1 K 23 6/30/2008 93 4 12.145 10.000 1.000
90 MSMC 1 25 3/31/2016 91 4 2.145 1.000 1.000
91 MSMC 6 L 30 8/31/2008 86 4 2.145 1.000 1.000
95 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
96 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
97 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
102 MSMC 1 25 2/29/2016 90 5 2.145 1.000 1.000
104 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
108 MSMC 3 27 1/31/2016 89 4 2.145 1.000 1.000
112 MSMC 2 26 11/30/2015 87 7 2.145 1.000 1.000
118 MSMC 1 25 3/31/2016 91 4 2.145 1.000 1.000
126 MSMC 3 M 27 8/31/2008 89 4 7.145 5.000 1.000
138 MSMC 4 28 12/31/2015 88 4 12.145 10.000 1.000
140 MSMC 1 25 3/31/2016 91 4 2.145 1.000 1.000
151 MSMC 2 26 2/29/2016 90 4 2.145 1.000 1.000
MASTER PRIMARY
EXCESS EXCESS
SERV. SERVICING EXCESS
LOAN MORTGAGE FEE RATE FEE RATE TRUSTEE SERVICE
POOL NO. LOAN SELLER (BPS) (BPS) DEAL FEES FEE RATE FEE RATE
-------- ----------- -------- --------- --------- -------- --------
1 MSMC 0.000 0.000 2.000 0.145 0.000
7 MSMC 0.000 0.000 2.000 0.145 0.000
17 MSMC 0.000 0.000 2.000 0.145 0.000
26 MSMC 0.000 0.000 2.000 0.145 0.000
29 MSMC 0.000 0.000 2.000 0.145 0.000
47 MSMC 0.000 0.000 2.000 0.145 0.000
48 MSMC 0.000 0.000 2.000 0.145 0.000
49 MSMC 0.000 0.000 2.000 0.145 0.000
50 MSMC 0.000 0.000 2.000 0.145 0.000
52 MSMC 0.000 0.000 2.000 0.145 0.000
53 MSMC 0.000 0.000 2.000 0.145 0.000
56 MSMC 0.000 0.000 2.000 0.145 0.000
57 MSMC 0.000 0.000 2.000 0.145 0.000
59 MSMC 0.000 0.000 2.000 0.145 0.000
62 MSMC 0.000 0.000 2.000 0.145 0.000
63 MSMC 0.000 0.000 2.000 0.145 0.000
66 MSMC 0.000 0.000 2.000 0.145 0.000
67 MSMC 0.000 0.000 2.000 0.145 0.000
74 MSMC 1.000 0.000 12.000 0.145 1.000
77 MSMC 0.000 0.000 2.000 0.145 0.000
81 MSMC 0.000 0.000 2.000 0.145 0.000
82 MSMC 0.000 0.000 2.000 0.145 0.000
85 MSMC 0.000 0.000 2.000 0.145 0.000
86 MSMC 0.000 0.000 2.000 0.145 0.000
88 MSMC 1.000 0.000 12.000 0.145 1.000
90 MSMC 0.000 0.000 2.000 0.145 0.000
91 MSMC 0.000 0.000 2.000 0.145 0.000
95 MSMC 0.000 0.000 2.000 0.145 0.000
96 MSMC 0.000 0.000 2.000 0.145 0.000
97 MSMC 0.000 0.000 2.000 0.145 0.000
102 MSMC 0.000 0.000 2.000 0.145 0.000
104 MSMC 0.000 0.000 2.000 0.145 0.000
108 MSMC 0.000 0.000 2.000 0.145 0.000
112 MSMC 0.000 0.000 2.000 0.145 0.000
118 MSMC 0.000 0.000 2.000 0.145 0.000
126 MSMC 1.000 0.000 7.000 0.145 1.000
138 MSMC 1.000 0.000 12.000 0.145 1.000
140 MSMC 0.000 0.000 2.000 0.145 0.000
151 MSMC 0.000 0.000 2.000 0.145 0.000
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
MASTER
CMSA LOAN LOAN PRIMARY ORIGINAL CURRENT
ID # LOAN # SELLER PROPERTY NAME TYPE BALANCE BALANCE PURPOSE
--------- ------ --------- ------ -------------------------- ----- ----------- ----------- -------------------------
12 755070 PCF II Valley Corporate Center ENG $22,700,000 $22,700,000 Deferred Maintenance
49 755035 PCF II Suncrest Commerce Center ENG $ 7,625,000 $ 7,625,000 Deferred Maintenance
Industrial Warehouse
47 05-23905 MSMC 000 Xxxxxxxx Xxxxxx ENG $ 8,000,000 $ 7,969,986 Deferred Maintenance
67 05-23881 MSMC Miramar Plaza ENG $ 5,000,000 $ 5,000,000 Deferred Maintenance
Roof Holdback ($127,334)
4 45987 BSCMI Lake Fairfax Business OTHER $56,191,000 $56,191,000 and Flooring Allowance
Park 7 (I) ($324,500)
Roof Holdback
5 45987 BSCMI Lake Fairfax Business OTHER $26,809,000 $26,809,000 ($60,751.78) and Flooring
Park 5 (I) Allowance ($155,038)
83 06-24674 MSMC St. Rose Dominican Medical OTHER $ 4,100,000 $ 4,100,000 Maintenance Fee Fund
Plaza
148 620903113 WFB DeSerpa - Main Street ENV $ 1,490,000 $ 1,490,000
Commercial
BSCMSI NONE
PRINCIPAL II LOAN NO.: 755070-$185,031
LOAN NO.: 755035-$125,000
LOAN NO.: 755057-$109,375
XXXXX
SPECIFIC
IMMEDIATE ENGINEERING
WORK COMPLETION OF
ADDITIONAL CONSTRUCTION-
TAB ENVIRONMENTAL REMEDIATON
LOAN NUMBER NO. PROPERTY NAME OF SIMILAR PROJECTS
----------- ---- ----------------------------------------------------------------- -------------------------------
510904018 The Westin Michigan Avenue Chicago
310903924 Xxxxxx Center Regional Mall
310904270 Savannah Crossings I & II
310904133 Xxxxxxxxxx - Xxxx 8
310904215 Consolidated Theatres
310903876 Xxxxxxx House Xxxxxxxxxx - Xxxxxxxxxx
310904136 Xxxxxxx
310904115 000 Xxxx Xxxxxx Xxxxxxxxxx - 0000 X.
310904135 Harbor Blvd
310904203 Xxxx Store - Xxxxxxxxx & National
310904080 Metro Pointe Retail
310904281 XxXxx Fabric Retail
610904005 Merchant Square Shopping Center
310904084 Xxxxxxx Xxx Xxxxx
000000000 Xxxxxxxxxx - Xxxx Xxxxxx
310904000 000 Xxxxxxxx Xxxxx
310903284 Xxxxxx Xxxxx Business Center
310904288 95 Digital Center
310903922 Village Tower Shoppes
410903055 0000 Xxxxxx Xxxxxx
410904141 Xx Xxxxxx Office
410903269 Sea Chrome Corporation
410904229 625 Stratford Industrial
410904293 Oak Shadows MHP
410904121 Missouri Crossings
410902735 Flex I Realty, LLC
410903654 Value Plastics
410903937 Xxxxxxxx
410903988 0000 X. Xxxxxxxx Xxxx Office Building
410904118 Gracy Farms Retail Center
410904235 Citibank Office Building
410904038 All-American Mini Storage
410903825 Security Public Storage - Xxxxxxxxx
410904105 918 Partners
410904156 Walgreen's - The Dalles
410904255 Canyon Springs Retail Building
410902889 Security Public Storage - Pittsburg
410904072 Oakcrest Village
410904233 Walgreen's - Vero Beach
410904291A BC & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx
410904291B BC & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx
410904291C BC & Westside SS Portfolio - 000 Xxxxxxxxx Xxx
410904185 000 Xxxxx Xxx Xxxxxxxxxx
000000000 Xxxx Xxx. - Xx Xxxxx Dr.
410904138 Fullerton 14 Retail
410904140 0000-0000 Xxxxxxxxx Xxxxx
410904287 Georgetown Place Shopping Center
410903592 Stratford Village Business Park $150,000 Letter of Credit
required due to the open
environmental concern. If
Borrower receives a response
from governmental agency that
additional testing and/or
remediation is required and
such estimated costs shall
exceed $150,000, then Borrower
shall be required to either
post the additional funds in
cash, an additional letter of
credit, or a replacement letter
of credit for the higher
dollars. In the event Borrower
does not fund the impound, loan
will become
620903113 DeSerpa - Main Street $150,000
Commercial (LOC)
410904103 Danray Distribution Center
410903837 Carpeteria - Goleta
410904128 Montebello Retail Center
410904276 Xxxxx Retail Center
410903895 Security Public Storage - Riverbank
410904078 Advance Auto Parts - Xxxxxxxx
410904208 Advance Auto - Austin
410904277 Carpeteria Xxxxxxx
410904139 000 Xxxxxxx Xxxxxx Xxxxx
410903875 0000-0000 X. Xxxxxxxx Xxxx Xxxx.
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(a)
MSMC
MORTGAGE CUT-OFF
MORTGAGE LOAN DATE
LOAN NO. SELLER PROPERTY NAME BALANCE BORROWER NAME SPONSOR
-------- -------- ---------------------------- ---------- ------------- --------------
56 MSMC Las Cruces Portfolio - Towne $4,487,234 Z1SP, LLC Xxxxxxx Xxxxxx
Place Suites (A)
57 MSMC Las Cruces Portfolio - $3,091,206 Z2SP, LLC Xxxxxxx Xxxxxx
Fairfield Inn (A)
PRINCIPAL II NONE
BSCMI NONE
XXXXX NONE
SCHEDULE IX
RESERVED
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
CMSA MORTGAGE MORTGAGE
PROPERTY NO. LOAN NO. LOAN SELLER PROPERTY NAME CURRENT BALANCE
------------ -------- ----------- ----------------------------------------------------- ---------------
6-001 7 MSMC 0000 X Xxxxxx $40,000,000
85-001 92 WFB Xx Xxxxxx Office $ 4,000,000
92-001 99 WFB Oak Shadows MHP $ 3,700,000
00-000 000 WFB Missouri Crossings $ 3,650,000
00-000 000 WFB Flex I Realty, LLC $ 3,417,692
000-000 000 WFB Gracy Farms Retail Center $ 3,150,000
000-000 000 WFB Citibank Office Building $ 3,134,748
000-000 000 WFB All-American Mini Storage $ 2,991,753
000-000 000 WFB Security Public Storage - Xxxxxxxxx $ 2,918,910
000-000 000 WFB 918 Partners $ 2,852,445
123-001 000 XXX Xxxxxx Xxxxxxx Retail Building $ 2,495,354
000-000 000 WFB Security Public Storage - Pittsburg $ 2,476,120
126-001 000 XXX Xxxxxxxx Xxxxxxx $ 2,473,648
000-000 000 WFB Walgreens - Vero Beach $ 2,296,014
000-000 000 WFB BC & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx (V) $ 934,256
000-000 000 WFB BC & Westside SS Portfolio - 0000 Xxxxxxx 00 Xxxx (V) $ 934,256
000-000 000 WFB BC & Westside SS Portfolio - 000 Xxxxxxxxx Xxx (V) $ 291,488
000-000 000 WFB 000 Xxxxx Xxx Industrial $ 2,096,635
136-001 000 XXX Xxxx Xxx. - Xx Xxxxx Dr. $ 2,038,052
000-000 000 WFB 0000-0000 Xxxxxxxxx Xxxxx $ 2,000,000
000-000 000 WFB Fullerton 14 Retail $ 2,000,000
143-001 000 XXX Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxx $ 1,642,553
000-000 000 WFB Danray Distribution Center $ 1,397,369
000-000 000 WFB Carpeteria - Goleta $ 1,395,166
000-000 000 WFB Montebello Retail Center $ 1,247,809
000-000 000 WFB Xxxxx Retail Center $ 1,198,023
000-000 000 WFB Security Public Storage - Riverbank $ 1,169,387
000-000 000 WFB Advance Auto Parts - Xxxxxxxx $ 1,162,967
000-000 000 WFB Advance Auto - Austin $ 1,065,169
000-000 000 WFB Carpeteria Xxxxxxx $ 1,047,382
000-000 000 WFB 000 Xxxxxxx Xxxxxx Xxxxx $ 1,000,000
000-000 000 WFB 0000-0000 X. Xxxxxxxx Xxxx Xxxx. $ 996,290
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER
THE END OF A COLLECTION PERIOD
DEBT SERVICE
MORTGAGE MORTGAGE PAYMENT GRACE
PROPERTY LOAN DUE PERIOD TO IMPOSE
NO. SELLER PROPERTY NAME DATE LATE CHARGE
-------- -------- ----------------------------------------------------- ---- ----------------
0 XXXX Xxxxxxxxx Xxxxx Xxxx 0xx 5
3 PCF II Xxxxxxxx Place Mall 1st 7
7 MSMC 2021 K Street 7th 1
47 MSMC H&R Properties Retail Portfolio - 1900 North Highland 8th 0
Avenue (III)
48 MSMC H&R Properties Retail Portfolio - 6756-6762 Hollywood 8th 0
Boulevard (III)
49 MSMC H&R Properties Retail Portfolio - 0000 Xxxxxxxx Xxxx 8th 0
(III)
67 MSMC Redlands Corporate Center II 8th 0
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
----------------- --------------
9/12/2006 $76,320,000.00
10/12/2006 $76,320,000.00
11/12/2006 $76,320,000.00
12/12/2006 $76,320,000.00
1/12/2007 $76,320,000.00
2/12/2007 $76,320,000.00
3/12/2007 $76,320,000.00
4/12/2007 $76,320,000.00
5/12/2007 $76,320,000.00
6/12/2007 $76,320,000.00
7/12/2007 $76,320,000.00
8/12/2007 $76,320,000.00
9/12/2007 $76,320,000.00
10/12/2007 $76,320,000.00
11/12/2007 $76,320,000.00
12/12/2007 $76,320,000.00
1/12/2008 $76,320,000.00
2/12/2008 $76,320,000.00
3/12/2008 $76,320,000.00
4/12/2008 $76,320,000.00
5/12/2008 $76,320,000.00
6/12/2008 $76,320,000.00
7/12/2008 $76,320,000.00
8/12/2008 $76,320,000.00
9/12/2008 $76,320,000.00
10/12/2008 $76,320,000.00
11/12/2008 $76,320,000.00
12/12/2008 $76,320,000.00
1/12/2009 $76,320,000.00
2/12/2009 $76,320,000.00
3/12/2009 $76,320,000.00
4/12/2009 $76,320,000.00
5/12/2009 $76,320,000.00
6/12/2009 $76,320,000.00
7/12/2009 $76,320,000.00
8/12/2009 $76,320,000.00
9/12/2009 $76,320,000.00
10/12/2009 $76,320,000.00
11/12/2009 $76,320,000.00
12/12/2009 $76,320,000.00
DISTRIBUTION DATE BALANCE
----------------- --------------
1/12/2010 $76,320,000.00
2/12/2010 $76,320,000.00
3/12/2010 $76,320,000.00
4/12/2010 $76,320,000.00
5/12/2010 $76,320,000.00
6/12/2010 $76,320,000.00
7/12/2010 $76,320,000.00
8/12/2010 $76,320,000.00
9/12/2010 $76,320,000.00
10/12/2010 $76,320,000.00
11/12/2010 $76,320,000.00
12/12/2010 $76,320,000.00
1/12/2011 $76,320,000.00
2/12/2011 $76,320,000.00
3/12/2011 $76,320,000.00
4/12/2011 $76,320,000.00
5/12/2011 $76,320,000.00
6/12/2011 $76,320,000.00
7/12/2011 $76,320,000.00
8/12/2011 $76,289,050.53
9/12/2011 $75,002,000.00
10/12/2011 $73,586,000.00
11/12/2011 $72,286,000.00
12/12/2011 $70,856,000.00
1/12/2012 $69,543,000.00
2/12/2012 $68,222,000.00
3/12/2012 $66,650,000.00
4/12/2012 $65,314,000.00
5/12/2012 $63,850,000.00
6/12/2012 $62,501,000.00
7/12/2012 $61,023,000.00
8/12/2012 $59,643,000.00
9/12/2012 $58,256,000.00
10/12/2012 $56,737,000.00
11/12/2012 $55,336,000.00
12/12/2012 $53,802,000.00
1/12/2013 $52,386,000.00
2/12/2013 $50,962,000.00
3/12/2013 $49,160,000.00
4/12/2013 $47,700,000.00
5/12/2013 $46,200,000.00
6/12/2013 $44,762,000.00
7/12/2013 $43,153,000.00
8/12/2013 $41,662,000.00
DISTRIBUTION DATE BALANCE
----------------- --------------
9/12/2013 $40,164,000.00
10/12/2013 $38,532,000.00
11/12/2013 $37,019,000.00
12/12/2013 $35,372,000.00
1/12/2014 $33,842,000.00
2/12/2014 $32,304,000.00
3/12/2014 $30,386,000.00
4/12/2014 $28,831,000.00
5/12/2014 $27,144,000.00
6/12/2014 $25,572,000.00
7/12/2014 $23,869,000.00
8/12/2014 $22,281,000.00
9/12/2014 $20,685,000.00
10/12/2014 $18,958,000.00
11/12/2014 $17,345,000.00
12/12/2014 $15,601,000.00
1/12/2015 $13,971,000.00
2/12/2015 $12,333,000.00
3/12/2015 $10,322,000.00
4/12/2015 $ 8,665,000.00
5/12/2015 $ 6,879,000.00
6/12/2015 $ 5,204,000.00
7/12/2015 $ 3,401,000.00
8/12/2015 $ 1,709,000.00
9/12/2015 $ 8,000.00
10/12/2015 $ 0.00
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":
RELEVANT SERVICING CRITERIA
------------------------------------------------------------------------------------------------ APPLICABLE
REFERENCE CRITERIA PARTY(IES)
---------------- ----------------------------------------------------------------------------- ----------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other Paying Agent
triggers and events of default in accordance with the transaction agreements. Master Servicer
Special Servicer
Primary Servicer
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Paying Agent
policies and procedures are instituted to monitor the third party's Master Servicer
performance and compliance with such servicing activities. Special Servicer
Primary Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer N/A
for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party Paying Agent
participating in the servicing function throughout the reporting period in Trustee
the amount of coverage required by and otherwise in accordance with the terms Master Servicer
of the transaction agreements. Special Servicer
Primary Servicer
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) 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
agreements. Primary Servicer
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an Paying Agent
investor are made only by authorized personnel.
1122(d)(2)(iii) 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
made, reviewed and approved as specified in the transaction agreements. Trustee
1122(d)(2)(iv) 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
transaction agreements. Primary Servicer
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Paying Agent
institution as set forth in the transaction agreements. For purposes of this Master Servicer
criterion, "federally insured depository institution" with respect to a Special Servicer
foreign financial institution means a foreign financial institution that Primary Servicer
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
RELEVANT SERVICING CRITERIA
------------------------------------------------------------------------------------------------ APPLICABLE
REFERENCE CRITERIA PARTY(IES)
---------------- ----------------------------------------------------------------------------- ----------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer
Special Servicer
Paying Agent
Primary Servicer
1122(d)(2)(vii) 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
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) 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
mortgage loans serviced by the Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Paying Agent
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) 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
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Paying Agent
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Trustee
transaction agreements or related mortgage loan documents. Master Servicer
Special Servicer
Primary Servicer
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Trustee
transaction agreements.
Trustee
1122(d)(4)(iii) 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
transaction agreements. Primary Servicer
1122(d)(4)(iv) 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
related mortgage loan documents.
RELEVANT SERVICING CRITERIA
------------------------------------------------------------------------------------------------ APPLICABLE
REFERENCE CRITERIA PARTY(IES)
---------------- ----------------------------------------------------------------------------- ----------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's Master Servicer
records with respect to an obligor's unpaid principal balance. Primary Servicer
1122(d)(4)(vi) 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
related pool asset documents.
1122(d)(4)(vii) 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
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) 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
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with Master Servicer
variable rates are computed based on the related mortgage loan documents. Primary Servicer
1122(d)(4)(x) 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
specified in the transaction agreements.
1122(d)(4)(xi) 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
agreements.
1122(d)(4)(xii) 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
omission.
1122(d)(4)(xiii) 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
number of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and Master Servicer
recorded in accordance with the transaction agreements. Primary Servicer
RELEVANT SERVICING CRITERIA
------------------------------------------------------------------------------------------------ APPLICABLE
REFERENCE CRITERIA PARTY(IES)
---------------- ----------------------------------------------------------------------------- ----------------
1122(d)(4)(xv) 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 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-TOP23 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 AB
o Party under Item 1100(d)(1) of Regulation AB
Item 3: Sale of Securities and Use of Proceeds o Depositor
Item 4: Defaults Upon Senior Securities o Paying Agent
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-TOP23 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
Item 9B: Other Information o Paying Agent
o Any other party responsible for disclosure items on
Form 8-K
Item 15: Exhibits, Financial Statement Schedules o Paying Agent
o Depositor
Additional Item: o Master Servicer (as to itself)
Disclosure per 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 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-TOP23 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 o Trustee/Paying Agent/Master
Agreement Servicer/Depositor/Special Servicer as to the
Trust
Item 1.02- Termination of a Material Definitive o Trustee/Paying Agent/Master
Agreement Servicer/Depositor/Special Servicer as to the
Trust
Item 1.03- Bankruptcy or Receivership o Depositor
Item 2.04- Triggering Events that Accelerate or o Master Servicer
Increase a Direct Financial Obligation or an o Trustee
Obligation under an Off-Balance Sheet Arrangement
Item 3.03- Material Modification to Rights of o Paying Agent
Security Holders o Trustee
Item 5.03- Amendments of Articles of Incorporation o Depositor
or Bylaws; Change of Fiscal Year
Item 6.01- ABS Informational and Computational o Depositor
Material
Item 6.02- Change of Servicer or Trustee o Master Servicer
o Special Servicer
o Primary Servicer
o Trustee
o Depositor
Item 6.03- Change in Credit Enhancement or o Depositor
External 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
Xxxxxx Xxxxxxx Capital I Inc., as Depositor
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Friend
Xxxxxxx Xxxxxx
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
NONE
